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End of DACA: What are the Alternatives for Dreamers?

by Dinh Tran, Partner | Queen City Immigration Law | 704-500-2075

A lot of speculation points to Tuesday, September 5, 2017 as the date President Trump will announce the end of DACA (Deferred Action for Childhood Arrivals). It is unclear, however, whether the program will be terminated immediately for all, including current beneficiaries, or just for new applicants, with current beneficiaries being allowed to continue until their benefits expire without being able to renew.

DACA was implemented by President Obama in 2012. It allows young people (ages 16 to 31) without a legal immigration status who arrived in the United States prior to their 16th birthday to be excluded from the deportation enforcement if they met some other requirements. Those requirements include being a high school or college student, having graduated from high school or passed the GED, and not having a significant criminal record.

Currently, it is estimated that 800,000 people are DACA beneficiaries. For the past five years they have been able to attend school, obtain lawful employment, apply for a driver license and even travel abroad for work, study or family-related purposes. However, should DACA be terminated on September 5, those 800,000 young people could find themselves in serious immigration trouble, especially now that they have voluntarily provided the government all the information about themselves to obtain DACA benefits.

If the President decides to end DACA immediately, current beneficiaries are advised to seek legal advice from an immigration attorney to determine whether any alternative options are available. Some of those options include the following:

1. APPLY FOR PERMANENT RESIDENT STATUS. Among the DACA beneficiaries, many have been able to obtain an advance parole document which allowed them to briefly travel abroad for work, to conduct business, to study at a foreign university, or visit a sick or dying relative, and return to the United States. Those people can apply for adjustment of status if they are married to a US citizen and already have an approved immigrant petition filed by that spouse or can be petitioned by that spouse.

2. APPLY FOR AN IMMIGRANT VISA. Those individuals who have an approved or a pending immigrant petition filed by their spouse, parent, or employer could leave the United States and go back to their country of nationality to apply for an immigrant visa at the consular post. The immigrant visa would then allow them to enter the United States as permanent residents. This is possible without triggering the 3-year or 10-year inadmissibility bar for unlawful presence if the person was granted DACA benefits before turning 18 years old, has maintained DACA continuously since then, and departs the United States no later than 180 days after his or her DACA is terminated.

3. REGISTER FOR TEMPORARY PROTECTED STATUS. The Department of Homeland Security has designated certain countries for TPS due to conditions in those countries that temporarily prevent their nationals from returning safely, or in certain circumstances, where the countries are unable to handle the return of their nationals adequately. TPS is similar to DACA because it protects the individuals granted that status from deportation enforcement, grants employment authorization, and may allow international travel. DACA beneficiaries who are also nationals of the countries designated for TPS could possibly register for Temporary Protected Status as an alternative to DACA.

4. APPLY FOR U VISA OR STATUS. The nonimmigrant U visa and status was designed to offer immigration protection to crime victims who have suffered substantial mental or physical abuse as a result of the crime. The U visa and status allows victims to remain in the United States and assist law enforcement authorities in the investigation or prosecution of the criminal activity. DACA beneficiaries who have been victims of certain qualifying crimes, reported the crime to the law enforcement and provided assistance could apply for this immigration benefit. Individuals granted U status can subsequently apply for permanent residency and eventually become citizens.

5. APPLY FOR OTHER NONIMMIGRANT VISAS. Some DACA beneficiaries may be able to apply for a nonimmigrant visa at a consular post abroad. The visa categories that are directly available include, among others, F and M to attend an educational institution or a vocational school, and E for international traders and investors as long as the applicants are nationals of one of the eligible nations. Other visa categories, which are dependent on a petition filed by the employer, include H-1B and TN for individuals who have at least a bachelor degree and will be employed in a profession typically requiring at least a bachelor degree for entry. Applying for a visa requires the applicants to travel abroad, which could trigger the inadmissibility bars. Those people who obtained DACA before turning 18 and have maintained it continuously will not be affected, but others will be and, therefore, must also apply for a waiver under INA section 212(d)(3). Additionally, applicants for most nonimmigrant visas, except H-1B, will have to demonstrate having a nonimmigrant intent.

Although these five options are available to DACA beneficiaries as alternative solutions for remaining in the United States should President Trump terminate DACA, not every person might qualify as each person's unique circumstances are different. Additionally, there might be other solutions not mentioned above. A consultation with an immigration attorney can help determine the best path forward.