Deferred Action for Childhood Arrivals | Federal Policy and Examples of State Actions

4/16/2020

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In 2012, the U.S. Department of Homeland Security (DHS) issued the Deferred Action for Childhood Arrivals (DACA) policy to allow young unauthorized immigrants who are low enforcement priorities to remain in the country with temporary lawful status.

On Sept. 5, 2017, DHS issued a memorandum rescinding the DACA program. Three district courts enjoined the Administration’s effort and allowed DACA recipients to apply for renewal. In 2019, the U.S. Supreme Court agreed to hear the case and oral arguments were presented November 12.  A ruling is expected by June 2020.

The U.S. House of Representatives passed the American Dream and Promise Act of 2019 (H.R. 6) on June 4, 2019.  HR6 would allow DACA recipients to gain lawful permanent residence.

An estimated 652,880 immigrant youth have DACA status. State by state estimates by the Migration Policy Institute can be found here

For more information, see the DHS FAQ and fact sheet.

Background 

In 2012, DHS issued the Deferred Action for Childhood Arrivals (DACA) policy to allow young unauthorized immigrants who are low enforcement priorities to remain in the country with temporary lawful status. A person who receives deferred action is considered to be lawfully present and may apply for work authorization. Deferred action is permitted for a renewable period of two years but it does not grant legal immigration status nor a pathway to citizenship. Deferred action under DACA may be terminated if the recipient engages in criminal activity, leaves the country without advanced parole, or if the program is repealed.

On Sept. 5, 2017, the U.S. Department of Homeland Security (DHS) issued a memorandum rescinding the DACA program.

On Jan. 9, 2018, a U.S. district judge ordered that DACA recipients be allowed to continue submitting renewal applications pending final decision on the litigation. DHS has resumed processing renewal applications. New DACA applications are not permitted. Pending applications will be adjudicated on a case by case basis. Deferred action status and employment authorization documents will continue to be valid for two years from date of issuance.

U.S. Citizenship and Immigration Services (USCIS) has accepted applications from individuals residing in all 50 states, the District of Columbia, and U.S. territories including Puerto Rico, Guam and the Virgin Islands. The top  10 states of residence are California, Texas, New York, Florida, Illinois, New Jersey, Georgia, North Carolina, Arizona  and Washington.

There are more than 25 different countries of origin, with the top 10 countries of origin being Mexico, El Salvador, Guatemala, Honduras, South Korea, Peru, Brazil, Ecuador, Colombia and the Philippines. As of September 30, 2019, USCIS has granted deferred status to 2,508,958 people under DACA.

Eligibility Requirements

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 U.S. 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.

Exemptions to eligibility requirements and application fee requirements: 

  • If an individual who is younger than 15 years of age is in the process of removal, has an order of removal or a voluntary departure order, and is not presently in an immigration detention, then the individual may be exempt from the age requirement criteria.
  • If an individual is under the age of 18 and is homeless or makes less than 150 percent of the U.S. poverty level and is in foster care or otherwise lacks familial support, then the individual may file to receive a fee exemption.
  • If an individual is not economically independent due to a serious illness and an income amounting to less than 150 percent of the U.S. poverty level or has a debt totaling more than $10,000 due to medical expenses for the individual or an immediate family member and has an income amounting to less than 150 percent of the U.S. poverty level, then the individual may file to receive a fee exemption.

State Responses

After DACA's implementation, many states considered whether to provide or deny state benefits such as driver’s licenses or instate tuition to noncitizens, including people granted deferred action.

Driver’s Licenses

Before DACA, three states—New Mexico, Utah and Washington—issued driver’s licenses or driving privilege cards to unauthorized immigrants. After DACA, California was the first to act to allow deferred action recipients to be issued driver’s licenses. All states now issue driver's licenses to DACA recipients. Currently, 15 states and the District of Columbia allow unauthorized immigrants to obtain a driver’s license. These states—California, Colorado, Connecticut, Delaware, Hawaii, Illinois, Maryland, New Jersey, New Mexico, New York, Nevada, Oregon, Utah, Vermont and Washington—issue a license if an applicant provides certain documentation, such as a foreign birth certificate, a foreign passport, or a consular card and evidence of current residency in the state. 

In-State Tuition Bills

Sixteen states and the District of Columbia offer in-state tuition  to unauthorized immigrant students by state legislative action and seven states by state university systems. Sixteen state legislatures—California, Colorado, Connecticut, Florida, Illinois, Kansas, Maryland, Minnesota, Nebraska, New Jersey, New Mexico, New York, Oregon, Texas, Utah and Washington—and the District of Columbia enacted laws to allow in-state tuition benefits for certain unauthorized immigrant students. At least seven state university systems—in Hawaii, Kentucky, Maine, Michigan, Ohio, Oklahoma and Rhode Island—established policies to offer in-state tuition rates to unauthorized immigrant students.

In 2018, Connecticut, Maryland, New Jersey, Oregon and Washington enacted laws allowing certain immigrant students, such as students with Deferred Action for Childhood Arrivals (DACA), to be eligible for financial aid. In 2019, Arkansas allowed DACA students or those with federal work permits to receive in-state tuition.

At least eleven states—California,Connecticut, Hawaii, Maryland,Minnesota, New Jersey, New Mexico, New York, Oregon, Texas and Washington—and the District of Columbia offer state-funded financial aid to unauthorized immigrant students. In April 2014, the Virginia attorney general advised that Virginia students who are lawfully present in the United States under the DACA program qualify for in-state tuition. Two states prohibit undocumented students from enrolling in public higher-education institutions – Alabama and South Carolina. However, these states allow DACA recipients to enroll in public colleges and universities and some institutions in Alabama allow DACA recipients to receive in-state tuition rate. The State Board of Regents in Georgia prohibits certain institutions from admitting undocumented students. 

Health Care

DACA recipients are ineligible for most forms of government health care assistance including the Children’s Health Insurance Program, Medicaid, and tax credits under the Affordable Care Act. Some states, such as California, Illinois, Massachusetts, New York, Oregon, Washington state and Washington, D.C., have opted to fund health insurance to all children regardless of immigration status. 

State Professional Licenses

The requirements to obtain a professional license vary from state to state. Fifteen states—Arkansas, California, Florida, Illinois, Maine, Minnesota, Nebraska, Nevada, New Jersey, New York, Oregon, South Dakota, Utah, West Virginia and Wyoming—have enacted legislation to provide or improve professional licenses for certain populations, such as DACA recipients, legal immigrants and/or unauthorized immigrants.

Arkansas authorized the State Board of Nursing to license recipients of the Deferred Action for Childhood Arrivals (DACA) program and added a medical fellowship as a method for a foreign medical graduate to obtain a license to practice medicine. California passed legislation allowing qualified applicants could be admitted to the state bar regardless of their immigration status. California also enacted a measure allowing about 40 state boards to accept a federal taxpayer identification number as proof of identification in lieu of a Social Security number when considering applications. Florida enacted legislation permitting the Supreme Court to admit certain unauthorized immigrant students to practice law if they received employment authorization from the federal government, a Social Security number, and fulfilled all state requirements. Maine repealed a residency provision for applicants and a character reference requirement for foreign-trained applicants. Minnesota created the Foreign-Trained Physician Task Force to address barriers to practice and facilitate pathways to assist immigrant international medical graduates to integrate into the Minnesota health care delivery system. Nebraska allows professional or commercial licenses to DACA recipients.  The New York Board of Regents allows eligible DACA recipients to receive a professional license and some teacher certifications. California, Illinois and Nevada prohibit the denial of an occupational or professional license based solely on the applicant's citizenship or immigration status. New Jersey established a pilot program for licensing those with a barber’s license from another state or foreign country. Maine, Oregon and Washington support studies on how immigrants or refugees become licensed and to reduce barriers for them. Nevada allows licensing for foreign teachers, South Dakota for dentists, and Utah for occupational therapists. West Virginia allows permits for exchange teachers from foreign countries. Wyoming repealed a requirement for a bar applicant to be a U.S. citizen. 

In 2018, Colorado adopted a resolution that recognized “Dreamers” losing their work authorization would have far-reaching job-loss consequences for all Americans. 

Deferred Action Timeline

June 15, 2012 –  The DACA program is created by DHS memorandum.

Aug. 15, 2012 – Individuals begin filing DACA applications with USCIS.

Nov. 20, 2014 – The Deferred Action for Parents of Americans (DAPA) program and the DACA expansion is announced.

Dec. 03, 2014 – Texas v. United States is filed by 22 states: Texas, Alabama, Arkansas, Arizona, Florida, Georgia, Idaho, Indiana, Kansas, Louisiana, Montana, Nebraska, Nevada, North Dakota, Ohio, Oklahoma, South Carolina, South Dakota, Tennessee, Utah, West Virginia, Wisconsin and by five politicians from Idaho, Maine, Michigan, Mississippi and North Carolina.

Feb. 16, 2015 – The U.S. District Court for the Southern District of Texas grants a preliminary injunction, blocking the implementation of DAPA and the expanded DACA.

Mar. 12 2015 – The Department of Justice (DOJ) files an appeal to the U.S. Court of Appeals for the Fifth Circuit to lift the implementation block.

Nov. 9, 2015 – The U.S. District Court of Appeals for the Fifth Circuit affirmed the lower court’s decision to grant the preliminary injunction.

Jan. 19 2016 – The U.S. Supreme Court agrees to hear United States v. Texas

June 15 2017 – DHS announces the rescission of the DAPA program.

Jun 23 2016 – The U.S. Supreme Court arrives at a 4-4 decision, leaving the Fifth Circuit’s decision in place.

June 29, 2017 – Texas and 9 states request Attorney General Jeff Sessions to repeal the DACA program by September 5, 2017.

July 21, 2017 – California and 18 states plus the District of Columbia wrote a letter to the president requesting continuation of DACA.             

Sept. 5, 2017 - DHS officially rescinds DACA by memorandum with a six month phase out. 

Sept. 6, 2017 - New York and 14 states plus the District of Columbia file a lawsuit seeking a halt to the rescission of DACA. 

Jan. 9, 2018 – A San Francisco-based U.S. District Court judge ordered the administration to resume accepting renewal applications for DACA

Feb. 26, 2018 – The Supreme Court declines to take up an immediate appeal of court decisions resuming DACA renewals

April 24, 2018 – A federal judge ruled that DACA must stay in place and DHS must accept new and renewal applications

June 28, 2019 – The Supreme Court decides to consolidate three petitions related to DACA Department of Homeland Security v. Regents of the University of California (Docket 18-587), Trump v. NAACP (Docket 18-588), and McAleenan v. Vidal (Docket 18-589)

November 12, 2019 – The Supreme Court hears oral arguments on the cases (transcript)

June 2020 – The Supreme Court is expected to deliver its decision

DACA Approved Applications 

U.S. Citizenship and Immigration Services DACA application report (state by state breakdown on Page five of PDF)

Migration Policy Institute DACA Interactive Map 

 

Additional Resources

NCSL Resources

The NCSL Blog: Supreme Court to Review DACA

NCSL’s database on state immigration laws

NCSL Immigrant Policy Project Website

NCSL’s brief on In-state Tuition and Unauthorized Immigrant Students

NCSL's brief on Professional and Occupational Licenses for Immigrants

Other Resources

U.S. Citizenship and Immigration Services FAQ on Deferred Action

U.S. Citizenship and Immigration ServicesDACA application statistics

U.S. Department of Homeland Security memo

MPI DACA Data Tools

 

Originally prepared by:

Maria Pimienta, Immigrant Policy Project summer intern and Ann Morse, program director, Immigrant Policy Project. Updated April 2020 by Sean Walsh, Emerson National Hunger Fellow.