As part of President Obama’s recently-signed executive orders, a new form of prosecutorial discretion has been announced. The program is called Deferred Action for Parental Accountability (DAPA) and provides relief from deportation temporarily and allows those eligible for DAPA to get a work authorization card. In some respects, DAPA tracks the President’s prior grant of deferred action for certain childhood arrivals, but it is important to remember that DAPA has its own set of rules.
In order to be eligible for DAPA, the person must:
- have a son or daughter who is a U.S. citizen or lawful permanent resident born before November 20, 2014;
- have been physically present in the U.S. on November 20, 2014;
- have no lawful immigration status on November 20, 2014;
- have continuously resided in the U.S. since at least January 1, 2010;
- not be on the government’s list of enforcement priorities – felons, those convicted of certain misdemeanors, gang members, terrorists, recent unlawful entrants and other immigration law violators;
- have no other factors that would lead the government to not want to give deferred action; and,
- pass a background check.
According to news reports, the Department of Homeland Security has directed Immigration and Customs Enforcement (ICE) personnel and attorneys to identify individuals who are eligible for DAPA. If those DAPA-eligible individuals are in custody, in removal proceedings, or scheduled for deportation to exercise discreton and to close or terminate their cases.
DAPA beneficiaries are expected to be able to work and a grant of DAPA should last 3 years. The filing fee will be $465 for DAPA. DAPA individuals will not be eligible for federal benefits including food stamps, financial aid or housing subsidies. Regulations will be enacted to prohibit DAPA folks from coverage under the Affordable Care Act as well. USCIS is expected to start taking applications for DAPA in May of 2015.
Finally, as with all aspects of deferred inspection, it is important to discuss what these changes are not. The changes are not permanent. They could be revoked by the next President or overridden by Congress. This is not lawful status. This is not a path to citizenship. People applying for DAPA would, in effect, be raising their hand and saying “I’m here in the U.S. without status.” This could carry some risk as a new President could cancel deferred action and (re)institute deportation proceedings. Also, this only applies to undocumented aliens with US citizen children or LPR children. There is no similar change for undocumented immigrants who are married to US citizens or LPRs.