Immigration Protection for Undocumented Immigrant Youth

The U.S. Citizenship and Immigration Services (USCIS) has released a form that undocumented immigrant youth can use to apply for immigration protection under a new immigration opportunity known as “Deferred Action for Childhood Arrivals” (DACA). In this fact sheet, Lambda Legal provides answers to frequently asked questions about the application process, focusing on the needs of lesbian, gay, bisexual, transgender and questioning youth, and HIV-affected youth. Please note that this document is not intended to provide legal advice or guidance regarding any specific situation.

1. I am undocumented, can I apply for deferred action under DACA?

You may apply for deferred action under DACA if you:

• Were under the age of 31 as of June 15, 2012;
• Came to the United States before reaching your 16th birthday;
• Have continuously resided in the United States since June 15, 2007, up to present time;
• Were physically present in the United States on June 15, 2012, and at the time of making your request for consideration of deferred action;
• Are currently in school, have graduated or obtained a certificate of completion from high school, have obtained a general education development (GED) certificate, or are an honorably discharged veteran of the U.S. Coast Guard or Armed Forces; and
• Have not been convicted of a felony, significant misdemeanor, three or more other misdemeanors, and do not otherwise pose a threat to national security or public safety.

2. Does deferred action provide me with a “green card” or citizenship?

No. Deferred action is a form of prosecutorial discretion that does not provide a “green card” or path to citizenship. DACA is not comprehensive immigration reform. We still need comprehensive LGBT-inclusive immigration reform to create a path to legalization and U.S. citizenship for all immigrants.

3. Which felony, “significant misdemeanor” or other offenses may disqualify me from deferred action?

Criminal law—and how immigration will treat your criminal offenses—can be complex and technical. Please consult with an immigration lawyer for advice on your specific circumstances.

A felony is a federal, state, or local criminal offense punishable by imprisonment for a term exceeding one year. USCIS considers the following offenses to be “significant misdemeanors”: domestic violence, sexual abuse or exploitation, burglary, unlawful possession or use of a firearm, drug distribution or trafficking; and driving under the influence. These offenses are considered “significant misdemeanors” regardless of the sentence imposed. Other offenses may also be considered “significant misdemeanors” if you were sentenced to serve more than 90 days in custody. This does not include a suspended sentence.

Even if your offense is not listed as a “significant offense,” you may be ineligible for deferred action if you have been convicted of “three or more misdemeanor offenses.” Any misdemeanor for which you are sentenced to fewer than 90 days in custody may be counted toward the “three or more misdemeanor offenses.” But USCIS has announced that minor traffic offenses—like driving without a license—will not be considered a misdemeanor for purposes of this process.

4. How do I apply for deferred action?

To submit your application for deferred action, fill out an application for “Consideration of Deferred Action for Childhood Arrivals” (Form I-821D). Submit this form with an application for an employment authorization document (Forms I-765 and I-765-WS). If you fail to submit a completed For I-765, USCIS will not consider your request for deferred action.

Forms and instructions:

• deferred action
• employment authorization document

All the applications and forms should be submitted together (at the same time). Please remember that immigration law is complex and technical, and consult with an immigration lawyer for advice on your specific circumstances.

5. Are there application fees?

Yes, you should expect to pay a total of $465. This includes $85 for fingerprints and $380 for the work authorization document. USCIS will not consider your request for deferred action unless you include these filing fees.

Please note there are no fee waivers. However, there are very limited fee exemptions available. Requests for fee exemptions must be filed before you submit your request for deferred action without a fee. To be considered for a fee exemption, you should submit a letter and supporting documentation to USCIS demonstrating that:

• You are under 18 years of age, homeless, in foster care or under 18 years of age and otherwise lacking any parental or other family support, and your income is less than 150% of the U.S. poverty level.
• You cannot care for yourself because you suffer from a serious, chronic disability and your income is less than 150% of the U.S. poverty level.
• You have, at the time of the request, accumulated $25,000 or more in debt in the past 12 months as a result of unreimbursed medical expenses for yourself or an immediate family member, and your income is under 150% of the U.S. poverty level.

6. What evidence may be sufficient enough to attach to my deferred action application?

Each request for deferred action is reviewed on an individual, case-by-case basis. You may submit school, employment, hospital, medical, financial, banking, tax, insurance, travel, religious, church and/or military records to support your application. For many people, this may include leases, rent receipts, utility bills, pay stubs, W-2 forms, report cards, school letters, car registration and car insurance information. To demonstrate you are currently in school, that you graduated from high school, or that you have obtained a general education development (GED) certificate, you may include diplomas, GED certificates, report cards, school letters, and transcripts. USCIS may request more information or evidence from you. You will also need your passport or a translated and notarized birth certificate.

7. If my application is denied, can I appeal?

There is no process for an appeal. If your application is denied, USCIS may refer your case to Immigration Customs Enforcements (ICE) and they may place you in removal proceedings. But USCIS has indicated that if your case does not involve a criminal offense, fraud, or a threat to national security or public safety, you should not be referred to ICE.

8. I am living with HIV, can I still apply?

On January 4, 2010, the HIV ban on immigration was lifted. Your application for deferred action should not be denied or rejected based on your HIV status. You may apply for deferred action even if you are living with HIV or otherwise HIV-affected. If you feel you have been discriminated against on the basis of your HIV status, contact Lambda Legal's Help Desk.

9. Can my sexual orientation or gender identity disqualify me for deferred action?

USCIS may not deny your application for deferred action based on your sexual orientation or gender identity. If you feel you have been discriminated against on the basis of your sexual orientation or gender identity, contact Lambda Legal's Help Desk.

10. What other resources are available for me?

Lambda Legal's Help Desk staff responds directly to members of our communities who are seeking legal information and assistance with discrimination related to sexual orientation, gender identity and expression, and HIV status.