December 10, 2012

Deferred Action for Childhoold Arrivals and Unlawful Presence Dangers

The Deferred Action for Childhood Arrivals (DACA) program allows certain individuals who entered the United States before age 16 to remain in the United States and continue their education or work legally for a two-year period (and possibly longer with renewals). While it is not legal status, DACA has certain advantages for those who qualify.

One advantage is avoiding “unlawful presence” for those who are under 18 years old when they apply for DACA. Here are some important facts about unlawful presence that every DACA applicant should know.

What is Unlawful Presence?
In 1997, Congress enacted the unlawful presence law to punish immigrants who enter the U.S. illegally or who stay in the U.S. after their visa expires. The law says that these immigrants accrue unlawful presence for each day they remain in the U.S. without government approval. If an immigrant accumulates between 180 and 364 days of unlawful presence and then leaves the U.S., he or she will be barred from getting a visa and returning to the U.S. for three years (3 year bar). If the immigrant is unlawfully present in the U.S. for one year or more and then leaves the U.S., then he or she will be barred from getting a visa and returning to the U.S. for 10 years (10 year bar).

For example, Susan entered the U.S. with a visitor visa which expired August 30, 2011. She did not return home before that date. Instead, she continued to stay in the U.S. until March 30, 2012. When Susan applied for a new visitor visa, the officer denied the visa because she had 210 days of unlawful presence She was told she could not get another visa until March 31, 2015, three years after she left the U.S.

DACA and Unlawful Presence
DACA applicants should know that children under 18 do not accrue unlawful presence. But once you turn 18, you begin accruing it. If you apply for DACA, you will stop accruing unlawful presence as long as you are in the DACA program.In other words, DACA stops unlawful presence.If you are under 18 when you apply for DACA, you will not accrue unlawful presence after you turn 18.This can open the door to getting permanent legal status, including a green card, as illustrated by the case studies below.

Case Study #1
Jorge applies for and is approved for DACA before he turns 18.He then attends a university and graduates with a Bachelor of Science degree in engineering. An engineering company hires him and agrees to sponsor him for an H-1B visa. As part of the H-1B visa process, he has to go to Mexico to get the H-1B visa. Because he has never accrued unlawful presence, he obtains the H-1B visa and returns back to the U.S. His employer is so impressed with his work that it sponsors his green card as well.

Case Study #2
Jennifer was born in the Philippines and illegally crossed the U.S. border from Canada with her family when she was 10.She is 16 years now and applies for DACA.Jennifer graduates high school, attends college, and marries her college sweetheart, Steven, who is a U.S. citizen.Steven applies for Jennifer’s green card.Jennifer did not enter the U.S. legally so she must return to the Philippines to get her green card.Because she was approved for DACA since age 16 and did not accrue unlawful presence, she is approved for the green card and returns to the U.S. in a few weeks.

For assistance with your DACA application, you are invited to call us at 469-916-7900.