Questions and Answers about Executive Action
Our last article summarized President Obama’s Executive Action which will provide millions with benefits of a work permit and sense of greater security. One important part of the program is the expansion of DACA to children who entered the United States before the age of 16, and before January 1, 2010, no matter what their age is now. They can apply for a 3 year work permit beginning in February 2015. Here are some common questions that we wanted to address regarding this expanded program:
Q. What if I travelled after I came to the U.S.
A. Travel before August 15, 2012 will not interrupt the continuous residence as long as the travel was “brief and casual”. We have received several calls about students who returned to Korea for part of the summer –as long as it was not extended, and they were in school before and after their trip, they should qualify. But this issue will have to be addressed with strong evidence and legal representation is strongly advised.
Q.What if I committed a crime?
A. You are not eligible for DACA if you committed a felony or a major misdemeanor. Major misdemeanors include: domestic violence, sexual abuse, burglary, DUI, drug distribution, gun violations. Non serious misdemeanors will not bar you, but you must hire a skilled attorney before filing DACA to determine the legal significance of the criminal conviction.
Q.If my DACA application fails, am I in danger of being placed in removal proceedings?
- Your case will not be referred to ICE for removal proceedings unless your case involves criminal activity, a threat to the community or national security or some other extraordinary reason.
Q. Do I have to be illegal (out of status) to apply
Yes-your status must have ended as of June 15, 2012. But, we have successfully argued that DACA applicants who had pending adjustment applications which were eventually denied were DACA eligible because their work permit was based on a failed application. This issue requires competent legal advice. Many Koreans had ongoing “status” based on pending adjustment application (usually though approved I-140 petitions) which eventually were denied.
Q. If approved, can I travel outside of the U.S. to visit Korea?
Travel is permitted only if the USCIS grants “advanced parole” using Form I-131. This permission is granted for humanitarian, educational and employment reasons.
Q. When can I apply for Expanded DACA
USCIS will issue instructions in February 2015.Please follow advice that we offered in the earlier article so you are ready to file ASAP after the process is initiated in early 2015. The earliest applications are normally adjudicated quicker before the rush of applications arrive. This means it is important to prepare NOW!!!