September 18, 2012

The latest version of USCIS’ Frequently Asked Questions on Deferred Action for Childhood Arrivals clarifies several points on which both applicants and attorneys have been waiting for guidance.


Q: May an applicant travel abroad after August 15, 2012 but before applying for Deferred Action, or after filing but before approval?

A: No, that will result in denial of the DACA application.

Q: Will a person granted Deferred Action be allowed to travel abroad?

A: Not automatically. Those who are granted Deferred Action will have to apply for an Advance Parole travel document.

It is strongly advisable to consult an immigration attorney before filing for permission to travel. Most applicants who qualify for Deferred Action will have accrued long periods of unlawful presence in the United States, so travel abroad may trigger the 3-year, 10-year or permanent bars to readmission, which could cut off eligibility for all future forms of relief or more permanent immigration benefits, even if the person is temporarily allowed back in to the United States on the basis of an Advance Parole travel document.

The latest USCIS FAQ notes that even if you are granted Deferred Action and an Advance Parole travel document, if you have been in deportation or removal proceedings in court before the Executive Office of Immigration Review, before you travel abroad you should seek to reopen the case and have the immigration proceedings terminated or administratively closed. Do not leave the country before termination or administrative closure is granted.

Social Security Number:

USCIS has clarified that where Item 9 on the Form I-765 asks for a social security number, the only number DACA applicants should enter in that space is a genuine Social Security Number officially issued to you, not a made-up one or one that belongs to someone else.

Documenting Continuous Residence:

Q: Do you need to provide documents establishing physical presence & continuous residence in the United States for every month since June 15, 2007?

A: No, but you need at least one document every 11 months or so, and some evidence within a month or two of June 15, 2012.

For DACA applicants who graduated from high school or college several years ago, some or all of the five-year period between June 15, 2007 and June 15, 2012 will not be covered by school transcripts, and may be difficult to document with medical or work records. You may use other circumstantial evidence – I am one of many immigration lawyers who recommend printing screenshots from your Facebook timeline, particularly where you are tagged in photos at some identified location in the United States.

Employment Records:

Q: Can providing your work records as part of the evidence of continuous residence in a DACA application result in enforcement actions against your past or present employers?

A: This information will not be shared with ICE for civil violations under INA 274A, but it will be shared for criminal enforcement actions if there is evidence of “egregious violations of criminal statutes or widespread abuses.”

What does that mean in plain English? We don’t know yet, but evidence of a consistent pattern of hiring people who lack work authorization can result in criminal penalties, so if you know of many other employees at your workplace who are not authorized to work, the safe course of action is not to use evidence of that job in a DACA application.