Can’t Apply For DACA? Six alternate ways we’ve stopped deportation of Dreamers

UPDATE: AS OF TODAY DACA is still accepting renewals, and also new applications click here for the latest on DACA or read on for other options.

Close to 800,000 people in the United States have been protected (more than the current population of Seattle) under the DACA executive order that came into effect under former President Obama. If you include those young people that applied for the program and didn’t get into it, or those who were eligible, but hadn’t applied yet, all in this change affects upwards of over a million young people in the United States and their families.

I have been exclusively practicing immigration law for over two decades and one thing always remains the same: Change.

DACA was NEVER meant to be a permanent program, and we warned people when they came into our office, and told them that there might be better, and more permanent residency options for them.

At some point these temporary programs go: TPS, DACA, NACARA, HRIFA, etc. At the end of the day, temporary programs, [and even permanent programs such as the old 245(i)], come and go, but you have to be pragmatic and stay focused to find practical alternatives.

But first, what is currently happening with DACA?

For the latest news on DACA, please click here.

What about people who cannot renew their DACA? What alternatives are there to DACA

When DACA first came out we had many young people and their families walking into our office asking us if they qualified.

We said: “Sure, you COULD get DACA, but guess what? You may also be eligible for one or more other types of relief that might be more permanent in nature.”

One of the warnings we gave people, was that with DACA you are possibly putting yourself on a list, giving the government your fingerprints, and perhaps they are going to check back up on you.  That said, we also reminded immigrants that DHS can find virtually anyone if they really want to put in the effort, DACA or not.

If we choose one of these more permanent routes, then you may not be living with fear of removal at some later date. Below are the most COMMON list of alternatives that my firm has had many successes with over the past five years. These are NOT the only routes, but they are the most common practical alternatives to DACA.

  1. Adjustment of status:
    If you enter this country legally on a visa, and you are admitted under Section 245 of the Immigration Act  then you are prima facie eligible for a green card, most commonly by marriage (this now also includes immigration through same sex marriage).  You could have gotten (or choose now to renew) DACA, but you might be able to get a green card. When we tell people this I often hear this response: “Really? I already went to a lawyer and he told me I wasn’t eligible, because I overstayed my visa.” ANSWER: there is no statute of limitations under Section 245 of the act if you lawfully entered and meet other conditions. For many of our clients who had just aged out of DACA, we successfully went that way.
  2. The 601A waiver
    601As started in 2013, and was put in place to help border crossers – and certain other undocumented immigrants – gain legal status. This is an option if you can’t adjust your status, and it’s most  classically done through marriage, through certain provisions. Unlike adjustment of status, you have to prove “extreme hardship” to family members (citizen or resident parents or spouses) to prove hardship. A number of folks who had DACA, or were DACA potentials, were able to go this route as an alternative, and got green cards.
  3. Deferred Action:
    As the term indicates, Deferred Action is a mechanism to defer the action of ICE to remove an alien. A number of DACA recipients have a deportation order hanging over their heads. What if you are one of those people walking around with a deportation order since you were four years old? You’ve been living for DECADES in fugitive status. That’s very frightening, if your DACA goes away. For those individuals, there is a combination of waivers that may be available stateside: For instance, a 601A in tandem with an I-212  Application for Permission to Reapply for Admission into the United States After Deportation or Removal. You can apply for these waivers even if you have received an order of removal already, or overstayed your visa. VERY sensitive work that must be done carefully by experienced immigration professionals.
  4. U-Visa:
    This is a very delicate area of immigration law. U Visas were created to help protect victims of violence. About half the time the recipients are victims of domestic violence, the other half are victims of street/gang violence. To qualify the violence needs to have occurred in the US, it don’t need a prosecution. You need to have a law enforcement agency certify that it happened, that you were helpful, and you have an injury. You have to be cooperative. What’s important here? There is No statute of limitations when the violence took place, it could have been in the 80s or 90s. I personally helped a victim of human trafficking pro bono who came into my office with a case like this. She told me her story, we went down the street to the FBI — she shared her story with them, cooperated by telling them everything she knew, and was granted protection to stay in the United States. Work permit for four years and green card application at the end of the third year. Again – VERY sensitive work that must be done carefully by a team of experienced immigration attorneys.
  5. Parole in place for military families:
    Parole in place for military families was expanded in recent years, and we have had a lot of success with family members of the military. This could be active military or vets. This relief is typically for border crossers again, who are not here legally.
  6. Stipulation in the courts:
    Arguably, the end of prosecutorial discretion is the worst immigration edict that has come out of the Trump administration. Immigration lawyers used to be able to cut deals within the law using something called prosecutorial discretion. Trump basically said: “no more deals.” Imagine if the criminal justice system had no plea bargains? No one could get anything done. Between 90-98% of criminal cases don’t seek a trial, they seek negotiation from the district attorney. We used to be able to do that in many Immigration Court cases. Now there is a mandate that says, NO deals. This makes every immigrant a high priority for deportation, and theoretically means that an award-winning student at Harvard who came here at four is in the same “danger category for deportation”as an immigrant with criminal ties and convictions. Far more expensive, difficult and a waste of resources as I have stated in this article on Trump and immigration.

Don’t panic, look for immigration alternatives, and keep fighting

We’ve been through a lot of changes in immigration in the past 20+ years. There were many times when immigration lawyers thought the sky was falling, and that things like IIRAIRA in April 1997 would imply that everyone was going to get deported. Two decades later, we are still here — we are still fighting. And there are immigrants are an integral part of the fabric of this amazing country. The programs come and go, legislation will change, presidents come and go, but at the end of the day we are still here.

Advocacy is important.
Keep fighting.

Written by: Harlan York

Immigration Attorney Harlan York is Former Chair, Immigration Section, NJ State Bar Association and Former Co-Chair, NY State Bar Association CFLS Immigration Committee. Mr. York appeared on National Television on CBS This Morning with Charlie Rose and Primer Impacto on Univision, as well as Telemundo, NBC, and PBS. He was honored as First Ever Immigration Lawyer of The Year in NJ by Best Lawyers.

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