What is Deferred Action for Parental Accountability (DAPA) and Who Will Qualify?

On November 20, 2014, President Obama announced that he will take certain executive actions on immigration in the absence of a Congressional fix to our immigration system. See our blog post summarizing his entire announcement here. One of the programs President Obama announced is Deferred Action for Parental Accountability, or “DAPA.”  Though offering similar benefits, DAPA is different than Deferred Action for Childhood Arrivals (DACA), which the Obama Administration announced in 2012 and is still operational.

Am I eligible for DAPA?

If you meet the following requirements, you may be eligible to apply.

• You have a U.S. citizen or lawful permanent resident son or daughter (who was born on or before 11/20/2014);
• You have lived in the U.S. since January 1, 2010;
• You had no lawful status on November 20, 2014;
• You are not an “enforcement priority.”

How do I know if I’m an enforcement priority?

You may be a priority for enforcement if you have any of the following on your record:

• Criminal convictions or other public safety issues, such as:
  • A felony conviction (either categorized as a felony by the state or federal law, or an “aggravated felony” for immigration purposes, which may, in some cases, include certain misdemeanors, depending on the sentence you receive. Note:  this does not include state or local offenses that make your immigration status a crime).
  • Three or more misdemeanor convictions arising from three separate incidents (this does not include what the government describes as “minor traffic offenses”, such as driving without a license, it also does not include state or local offenses that make your immigration status a crime).
  • A “serious” misdemeanor conviction like a DUI, domestic violence, drug trafficking, sexual abuse or exploitation, burglary, or unlawful possession or use of a firearm. Also, this could be any misdemeanor where you spent more than 90 days in jail.
  • Membership in a criminal street gang.
• Previous immigration violations, which include the following:
  • You were caught attempting to enter the U.S. illegally at the border.
  • You have been determined to have “significantly abused” the visa or visa waiver programs.

Oh no! I might be a priority for enforcement. What can I do?

Even if you are described by one of the above enforcement categories, there may be an opportunity to try to convince USCIS that you are not actually an enforcement priority, and should be granted DAPA. This is something you should discuss with an immigration attorney before applying in order not to t expose yourself to unnecessary risk.

If you have ever been arrested, stopped by police, seen a judge, or been fingerprinted, you should talk with an immigration lawyer before applying for DAPA to determine if you are eligible.

What are the benefits of DAPA?

Applicants who receive DAPA approvals will:

• Receive deferred action, which is a promise from the government that it will not deport an individual for the period of deferred action (as long as he or she remains eligible).
• Be eligible to apply for work authorization.

Deferred action and the corresponding work authorization will last for three years as long as an individual remains eligible.  If after an individual’s DAPA is approved, he or she is convicted of a crime that disqualifies him or her from DAPA, the government could revoke the deferred action and put that person in deportation proceedings.

When can I file? And how much will it cost?

While we are still waiting to receive official guidance from USCIS, we have a few predictions.

• We believe the government filing fee will be $465.
• US Citizenship and Immigration Services should begin accepting applications during May 2015 (as of right now, it is not yet possible to apply for DAPA).

How can I prepare?

See our prior blog posting on preparing for Executive Action here.  While we are not sure exactly what will be required, you can start to gather certain documents that will likely be required:

• • + Identity Records

Obtain original identity documents for you and your family, including passports, birth certificates, adoption records, marriage certificates, divorce decrees, consular identifications, etc. For foreign documents, you may need to contact your country’s consulate. Such documents should be translated into English.

• • + Criminal Records

Obtain certified final dispositions for any and all arrests and convictions you may have. Even expunged arrests and convictions will need to be disclosed and a certified final disposition provided. These can usually be obtained at the court’s office of records or from the police department’s records office where the arrest occurred.

• • + Fingerprints

If you have ever been arrested, an FBI background check should be completed by submitting a completed fingerprint card with fee to the FBI. This process can take several months, so it is a good idea to get started now.

• • + FOIA

If you have ever had any contact with immigration authorities, you should obtain all documents related to that contact. If you no longer have copies of these documents, you may file a Freedom of Information Act (FOIA) request with the appropriate government agency to obtain a copy of your records. Click here for information about filing FOIAs with USCIS.

• • + Taxes

Remember, anyone working and earning income in the United States may be required to file a tax return. This is true even if the person is working without authorization or working for cash, as an individual without a social security number can apply for an Individual Taxpayer Identification Number (ITIN) from the IRS in order to file taxes. Consult with a qualified tax professional for assistance with filing your tax returns. If you have filed tax returns in the past, but don’t have copies, you can request transcripts of your prior tax filings from the IRS.  The details of the DAPA application have not yet been released, but President Obama mentioned in his speech that DAPA recipients will be required to pay taxes. Therefore, you should make sure to file at least your federal income taxes for 2014.  When you file your 2014 taxes, you should definitely consult with a qualified tax preparer to ensure that your taxes are properly filed.  An improperly filed tax return may be considered to be a negative factor in your case.  A few examples of an improperly filed tax return are ones that list you as “single” when you are legally married, or incorrectly lists individuals as dependents who do not qualify to be your dependents.  There are many more examples; tax preparation is complicated and you should see a qualified tax preparer.

• • + Evidence of Presence in the United States

Both Deferred Action programs (DACA and DAPA) require being continuously present in the U.S. since January 1, 2010. You should gather a variety of documents to prove how long you have continuously resided in the United States. Objective evidence such as bills, leases, bank accounts, tax filings, paystubs, medical records, school records, church records, insurance records, or other similar documents are generally considered preferable to affidavits (sworn statements).

Don’t forget, it is not yet possible to file an application under President Obama’s plan. Seek advice from a qualified attorney or organization accredited by the Board of Immigration Appeals. Notaries or “notarios” are NOT attorneys and are NOT qualified or authorized to give immigration advice. Learn more here.

If you or a loved one may qualify for DAPA, you can contact one of the attorneys at Minsky, McCormick and Hallagan, P.C. here.