Deferred Action for Childhood Arrivals (DACA): Federal Policy and Examples of State Actions
June 30, 2013
On This Page
Ann Morse, program director, NCSL Immigrant Policy Project, 202-624-5400
Sheri Steisel, senior federal affairs counsel in NCSL’s Washington office, 202-624-5400.
New federal policy on deferred action has led to consideration of legislative change in states related to driver's licenses and in-state tuition. This brief examines the federal policy change and examples of state legislation.
In June 2012, the U.S. Department of Homeland Security issued new federal policy to allow young unauthorized immigrants who are low enforcement priorities to remain in the country temporarily. The Deferred Action for Childhood Arrivals (DACA) policy allows the U.S. Department of Homeland Security to exercise prosecutorial discretion in granting administrative relief from deportation for young people covered by the policy. A person who receives deferred action is considered to be lawfully present. Deferred action status, however, does not grant the immigrant any substantive rights, legal immigration status or a pathway to citizenship. Deferred action recipients are not eligible for the Children’s Health Insurance Program or Medicaid, according to the U.S. Department of Health and Human Services. Deferred action is permitted for a period of two years and can be renewed. Those granted deferred action may apply for work authorization. The U.S. Citizenship and Immigration Service (USCIS) began to accept applications for deferred action as of Aug. 15, 2012.
To be considered for deferred action, the person must:
Have entered the country before the age of 16 and be under the age of 31 on June 15, 2012.
Have continuously resided in the United States since June 15, 2007.
Be at least 15 years of age and be in school, have graduated high school, received a GED or have been honorably discharged from military service.
The individual must not:
Have been convicted of a felony offense, a significant misdemeanor nor multiple misdemeanor offenses. Examples of significant misdemeanor offenses include violence, threats or assaults; burglary; obstruction of justice or bribery; driving under the influence; unlawful possession or use of a firearm; or unlawful possession of drugs.
USCIS received 438,372 applications between Aug. 15, 2012 and Feb. 14, 2013. USCIS has approved 199,460 applications. The top 10 countries of origin are Mexico, El Salvador, Honduras, Guatemala, Peru, South Korea, Brazil, Columbia, Ecuador and the Philippines. The top 10 states of residence are California, Texas, New York, Illinois, Florida, North Carolina, Arizona, Georgia, New Jersey and Colorado.
Further information can be found on the USCIS website or by calling the USCIS’ hotline at 1-800-375-5283. The June 15, 2012 policy memorandum from the U.S. Department of Homeland Security is available here.
The federal policy change may create new policy choices for states. Many states are considering whether to provide or deny state benefits such as driver’s licenses or instate tuition to noncitizens, including people granted deferred action. Existing state statutes may provide authority to state agencies. Other states are considering legislation.
Most states leave the authority to issue driver’s licenses to their respective departments of motor vehicles or departments of transportation. In some states, it is under the jurisdiction of the secretary of state or even the state tax commission. States regulate what forms of personal identification are acceptable for issuing state driver’s license and ID cards, often requiring proof through both primary and secondary documents. Documents accepted as base-identity documentation are sometimes determined through law and administrative code, but more often by agency policy. For that reason, they vary by state. These documents generally include birth certificates, valid immigration documents, military identification or valid passports.
Prior to the DACA policy, a few states provided driver’s licenses to those who cannot provide proof of legal immigration status: Washington and New Mexico issue driver’s licenses and Utah offers a driving privilege card. Since the new federal policy, some governors or state agencies have stated they will not allow driver’s licenses for DACA recipients, including Arizona and Nebraska. Most recently, Florida's governor vetoeod state legislation that would have provided licenses to unauthorized immigrants.
In the past year, California, Colorado, Connecticut, Georgia, Illinois, Maryland, Maine, Nevada, Oregon and Vermont enacted legislation to specifically address DACA recipients and driver’s licenses. Another dozen states have introduced bills related to DACA and requirements to provide licenses. Bills in Tennessee would deny licenses to DACA recipients.
California A2189, enacted Sept. 3, 2012, allows the DMV to issue a driver’s license to DACA recipients who might not be eligible for social security numbers.
Colorado S251, enacted on June 5, 2013, allows driver’s licenses to be issued to applicants, regardless of lawful presence or temporary lawful status in the United States. The applicant must sign an affidavit declaring current residency and proof of Colorado income tax return filing for the previous year. The individual must also supply an Individual Taxpayer Identification Number and sign another affidavit stating that the applicant has applied for lawful status or will do so when they become eligible. The legislation specifically bans the card from being used as valid federal identification. (Effective August 1, 2014)
Connecticut H6495, signed June 6, 2013, will provide motor vehicle licenses to applicants regardless of their immigration status. Applicants must provide two valid forms of identity and proof of residency within the state and are required to file an affidavit with the commissioner attesting that an application has been filed to legalize his or her immigration status. (Effective January 1, 2015)
Georgia S122, enacted May 1, 2013, authorizes the issuance of a temporary driving permit to a noncitizen applicant whose Georgia's driver's license has expired or will expire and who has filed a request for an extension to remain lawfully within the United States. (Effective January 1, 2014)
Illinois S957, signed Jan. 28, 2013, allows the issuance of a temporary visitor's driver's license to a driver who has resided in the state for a specified time but is ineligible for a Social Security number and is unable to document proof of lawful presence in this country. The law prohibits a temporary license from being used as proof of identity, and provides that such license is invalid if the driver is unable to provide proof of vehicle insurance. (Effective November 28, 2013)
Maryland S717/H789, signed May 2,2013, provides for the issuance of a driver's license provided that the applicant has documentation of Maryland income tax returns or has been claimed as a dependent of a Maryland resident who has filed income tax returns for the previous two years. (Effective January 1, 2014)
Maine H980/LD1372, signed May 29, 2013, provides an exception to the legal presence requirement if the person is renewing a driver's license that has been continuously held since 1989 or if the person was born before December 1, 1964. (Effective 90 days after adjournment: September 17, 2013)
Nevada S303, signed May 31, 2013, creates a driver's authorization card and allows applicants, regardless of legal status, to provide birth certificates or passports issued by a foreign country as proof of identity. (January 1, 2014)
Oregon S833, signed May 1, 2013, allows for short-term drivers licenses or permits without proof of legal presence in the United States. The applicant must have complied with all requirements for the license or permit and have resided in Oregon for more than one year. (Effective July 1, 2013)
Vermont S38, signed June 5, 2013, provides an operator’s privilege card for citizens of foreign countries who are unable to establish legal presence in the United States. The applicant must provide reliable proof of Vermont residency and identification. The card is to expire on the second birthday of the applicant after issuance. (Effective January 1, 2014)
Florida H235: “approval of an application for Deferred Action for Childhood Arrivals status issued by United States Citizenship and Immigration Services as valid proof of identity for purposes of applying for a driver license” Vetoed June 4, 2013.
California A60 would repeal provisions of existing law that requires the Department of Motor Vehicles to require an applicant for an original driver's license or identification card to submit satisfactory proof that the applicant's presence in the United States is authorized under federal law and to issue a temporary license under certain conditions.
Massachusetts H3285: Provides for the issuance of a driver’s license to a person who is ineligible for a social security number. The card is valid for one to four years; in order to be eligible for renewal a holder must obtain a social security number prior to expiration. The license specifically prohibits access to any public benefits with use of the privilege card, and becomes invalid if the holder is unable to provide proof of insurance.
New Jersey A3286 requires the Motor Vehicle Commission to issue one-year driving privilege cards to applicants who meet the criteria to be eligible for deferred deportation and work permits under this policy, but are not United States citizens.
New York S1320. Notwithstanding any contrary provision of law, the commissioner may, subject to the limitations of subdivision two of this section, issue a driving privilege card to a person who satisfies the requirements for issuance of a driver's license pursuant to section five hundred two of this title but who cannot provide: (a) proof of lawful presence in the United States; or (b) sufficient identifying documentation.
Instate Tuition Bills
In 1996, the illegal immigration reform law instituted a restriction on states' residency requirements and in-state tuition benefits for higher education, affecting an estimated 50,000-65,000 unauthorized immigrant students annually. Thirteen states subsequently enacted legislation to allow long-term unauthorized immigrant students to become eligible for in-state tuition if they meet certain requirements: California, Connecticut, Illinois, Kansas, Maryland, Nebraska, New Mexico, New York, Oklahoma, Texas, Utah, Washington and Wisconsin. In 2008, Oklahoma ended its support for in-state tuition for students without lawful presence.
Since the DACA policy was announced, several states are considering in-state tuition benefits for DACA recipients and Colorado and Oregon enacted legislation. Massachusetts requires a study.
Oregon H2787 provides that the State Board of Higher Education shall exempt a student who is not a citizen or a lawful permanent resident of the United States from paying nonresident tuition and fees for enrollment in a public university if the student, among other requirements, attended an elementary or a secondary school in the state and has the intention to become a citizen or lawful permanent resident. (Enacted July 1, 2013)
Colorado S13-033 institutes in-state tuition for students who have completed at least three years in a public or private Colorado high school before graduation or completion of a GED program within the state. A student without lawful immigration status must also submit an affidavit stating that the student has or plans to apply for lawful presence as soon as he or she is able. (enacted April 29, 2013)
Massachusetts H57. This appropriations law, in Section 32, states that the joint committee on higher education shall investigate and report on the impact to the public institutions of higher education in the commonwealth in accepting new students who are now eligible for work permits under the federal Deferred Action Executive Order. The committee shall include in its report an explanation of the Deferred Action Executive Order on the status of non-citizens who reside in the commonwealth; the Board of Higher Education’s regulatory authority to admit any new students who have been impacted by such an executive order; the fiscal impact of admitting such students; and any benefits or detriments associated with new admissions to the public institutions of higher education. The committee will submit its report to the House and Senate Committees on Ways and Means on or before July 1, 2013. (Enacted February 15, 2013.)
Minnesota H437 would allow financial aid to U.S. citizens, eligible noncitizens, and deferred action recipients.
New Jersey S2479/A3509. This bill allows a student, including a student without lawful immigration status, to pay in-State tuition at the State's public institutions of higher education if the student meets the following requirements: (1) attended high school in this State for three or more years; (2) graduated from a high school in this State or attained the equivalent of a high school diploma in the State; (3) registers as an entering student or is currently enrolled in a public institution of higher education not earlier than the fall semester of the 2013-2014 academic year; (4) in the case of a person without lawful immigration status, files an affidavit with the institution of higher education stating that the student has filed an application to legalize his immigration status or will file an application as soon as he is eligible to do so; and (5) in the case of a person without lawful immigration status, meets the eligibility criteria, and has submitted a request to the United States Citizenship and Immigration Services, for consideration of the United States Department of Homeland Security's deferred action for childhood arrivals process.
New York S1567: Grants eligibility for student financial aid to persons granted deferred action for childhood arrival status and to certain non-residents of the state.
Legal Service Protections Bill
California A35. Provides that immigration consultants, attorneys, and notaries public shall be the only individuals authorized to charge clients or prospective clients a fee for providing services associated with filing an application under the deferred action program. Prohibits immigration consultants, attorneys, and notaries public from participating in practices that amount to price gouging. Provides the conditions under which a person may receive medical assistance and unemployment compensation benefits.
Ann Morse, Program Director and
Emily German, Summer Fellow, 2013
NCSL Immigrant Policy Project
Revised June 30, 2013