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International Student Immigration Issues #7: Deferred Action for Childhood Arrivals (DACA) – The Benefits, Risks, and Requirements for Students

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This is the seventh in our series of posts on international student immigration issues, and our second which focuses specifically on the recent policy change known as Deferred Action for Childhood Arrivals (DACA).  Our guest-blogging attorney, Laurie Woog, who specializes in immigration and naturalization issues, provides further clarity around what the impacts of this policy change will be for undocumented students who wish to attend college.  While the first post answered questions on the basics of what the DACA policy change is, this post will address some of the benefits, risks, and requirements of the policy.
FAQs about Deferred Action for Childhood Arrivals (DACA) (Part 2)
Benefits
What are some benefits of applying for deferred action if I am an undocumented student, or a high school student who wants to apply to college?
While most undocumented students still must pay either international student rates or out-of-state tuition for public colleges – both of which can be pricey –  there are other benefits that will help undocumented students to attend college. If you receive an approval of your DACA application and employment authorization (sometimes referred to as a work permit) you will be able to obtain a social security number, which should enable you to have a wider range of higher education options, obtain a job to help pay for college, obtain a driver’s license, receive some forms of financial aid, and have access to paid internships to advance your career, among other things.  It is unclear whether some states will offer in-state tuition to DACA beneficiaries. Check with a college counselor who may be able to advise you about which state schools allow in-state tuition for undocumented students.
Risks
Is there a risk to undocumented family members if I apply for Deferred Action?
There may always be some level of risk in applying for any immigration benefit.  Deferred action is not the same as lawful status.  However, the current position of the United States Citizenship and Immigration Service (USCIS) is that information provided in a request for DACA benefits will not be utilized for the purpose of removal unless the requestor meets the existing criteria for issuing a “Notice to Appear” in immigration court.  See www.uscis.gov/NTA.  Beware, however, that this policy can be changed at any time.
Furthermore, information may be shared with national security or law enforcement agencies for other purposes, such as investigating a crime, fraudulent claim, or for national security purposes.  Therefore, the potential benefits from DACA are useful for most applicants, but each case should be approached individually.  Undecided applicants may want to consult a knowledgeable attorney or legal aid agency for assistance.
Evidence
What if I don’t have documentary proof that I was in the United States before age 16 or of my continuous residence between June 15, 2007 and August 15, 2012?
If you don’t have proof of certain elements to qualify for Deferred Action, don’t despair.  USCIS may consider circumstantial evidence that indicates you:

  • Were physically present in the U.S. on June 15, 2012;
  • Came to the U.S. before reaching your 16th birthday;
  • Resided continuously in the U.S. between 2007 and 2012, and the circumstantial evidence is used to fill in gaps in that period;
  • Did maintain continuous residence despite a brief visit outside the U.S.

What is “circumstantial evidence”?
For example, let’s say that you have utility bills or high school records for Jan. – May 2011, but nothing for June, July and August.  Your passport shows that you have not left the U.S. during the same period.  Therefore, the evidence you do submit leads to the implication that you were continuously present in May – August 2012.
Can I use circumstantial evidence to show I was a high school graduate or am a college student?
No, you must provide direct proof that you were a student or are currently a college student, such as a diploma, report cards, attendance records, school letters, etc.
 
Laurie Woog
The Woog Law Office, LLC
Practice Devoted to Immigration and Naturalization Law
www.wooglaw.com
 
Blog post brought to you by:
Andrea Aronson
College Admissions Specialist 
Westfield, NJ

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