An executive order by former President Obama in 2012 changed the lives of over 800,000 young people living in the United States. The Deferred Action for Childhood Arrival (DACA) was created in response to the Dream Act’s failure to pass through Congress. The Dream Act was intended to provide legal status to noncitizens brought to the United States illegally as children. The resulting DACA offers temporary relief from deportation and work authorization.
DACA was terminated in 2017, but a federal court order reinstated it in 2020. Before being elected, President Joe Biden made campaign promises to work toward permanent legislation and a streamlined path to citizenship for those eligible for DACA, otherwise known as “Dreamers.” According to the Migration Policy Institute, as of September 2020, there are 640,760 active DACA recipients and 1,331,000 eligible to apply.
DACA explained
DACA grants temporary protection from deportation for people who immigrated illegally as children, many of whom have no ties to the country of their birth. The program also provides permission for recipients to work in the United States and must be renewed every two years. To be eligible for DACA, individuals must:
- Have been born after June 15, 1981;
- Have resided in the United States before their 16th birthday;
- Have been physically present in the U.S. on June 15, 2012, and when applying for DACA;
- Have had no lawful status on June 15, 2012;
- Have continuously resided in the U.S. since June 15, 2007, until the present;
- Meet specific educational requirements or were honorably discharged from the U.S. Armed Forces
- Have not been convicted of certain crimes; and
- Pay a $495 filing fee.
Certain crimes, such as a felony, a significant misdemeanor that is punishable by one year or less of jail time, or three or more non-significant misdemeanors, bar eligibility from DACA. However, if the convictions are expunged, the application may not result in an automatic disqualification. Expungements are generally not considered in most immigration situations, but for DACA, it is allowed.
DACA’s bumpy road
In 2017, DACA was rescinded by the acting Secretary of Homeland Security. The reasoning was that the order represented an overreach of executive authority, affecting an estimated 1.3 million people in the United States. In June of 2020, The U.S. Supreme Court ruled that the attempt to terminate the program was unlawful due to the lack of explanation or offered alternatives according to the Administrative Procedure Act (APA). The ruling resulted in the restoration of DACA.
However, the restoration of DACA to its 2017 guidelines was short-lived. Though U.S. Citizenship and Immigration Services (USCIS) returned to accepting DACA applications, they failed to approve any forms. Six weeks after the Supreme Court’s ruling, significant changes were made, including requiring an annual renewal, rather than every two years, by Acting Secretary of Homeland Security, Chad Wolf.
In December 2020, a U.S. District Court ordered the Department of Homeland Security to fully reinstate the DACA program to the “terms as they existed prior to the attempted rescission of September 2017.” This ruling is based on the Administrative Procedure Act, which determined that Wolf was without legal authority to serve as the Department’s Acting Secretary. Any subsequent memorandums issued during his tenure were invalid.
In 2021, President Biden signed an executive order to protect DACA as part of the US Citizenship Act of 2021. Provisions of the order reinstated the program for four years with the goal of creating a more permanent solution that will lead to citizenship.
The US Citizenship Act of 2021
President Biden introduced the US Citizenship Act of 2021 during his first day in office. It is a step toward fulfilling his promise to “work to pass a permanent, legislative reform through Congress… use the full extent of my executive authority to protect Dreamers and keep their families together.”
According to Wikipedia, the act provides a “path to legal residence and eventual citizenship for as many as 11 million illegal immigrants in the United States, as well as current DACA dreamers and Temporary Protected Status beneficiaries, essential workers on a non-immigrant status, and agricultural laborers; recreating the V visa program to allow families to await immigrant visa approval together in the US; ending country-specific visa annual maximums; granting immediate relative status to spouses and children of green card holders, and other changes.”
Biden needs congressional approval to allow Dreamers to immediately apply for a permanent residency and a green card within three years. For this act to become law, it would need to pass with approval from the majority in the House of Representatives and a supermajority in the Senate. Meaning, the act must get at least two-thirds of the Senate vote to pass.
If the US Citizenship Act of 2021 passes, a new visa status, “lawful prospective immigrant” (LPI), would be created to provide qualified individuals who were in the United States before January 1, 2021, with lawful status in six-year increments. An adjustment of status to citizenship would be granted to those who have held valid LPI status for at least five years and abide by other qualifications and background checks.
The current state of DACA
Today, the future of living and working in the United States is still uncertain for Dreamers, despite President Biden’s recent order. Congress can create barriers to the executive order, and federal courts could also declare it unconstitutional. In fact, in January 2021, a case in a Texas U.S. District Court brought by the State of Texas is seeking to do just that. At the date of this article’s publication, a decision has not yet been made.
Despite the legal challenges, about 75% of U.S. adults favor granting permanent legal status to Dreamers, according to a 2020 Pew Research survey. Public support and economic benefits, especially during a pandemic, could push Congress to act on a more permanent solution. Over 200,000 DACA recipients are essential workers, including over 30,000 healthcare workers. Without the security of legislation, the United States could be without vital support needed during the coronavirus.
If the US Citizenship Act of 2021 does not pass in Congress, there are options to pass the comprehensive bill piece-by-piece to garner more bipartisan support. One option is to reintroduce the Dream Act as a starting point towards citizenship. However, the Dream Act contains provisions that render applicants ineligible if they have a record of criminal offenses as a minor that the US Citizenship Act does not include.
The Dream Act of 2021
The Development, Relief, and Education for Alien Minors or Dream Act was first introduced 20 years ago by Senators Dick Durbin and Orrin Hatch. They were then most recently reintroduced in 2019 by Durbin and Senator Lindsey Graham. The Dream Act allows Dreamers to gain lawful permanent residence and eventually citizenship if they:
- Came to the U.S. as children and are without lawful status;
- Graduate from high school or obtain a GED;
- Pursue higher education, work lawfully for at least three years, or serve in the military;
- Pass security and law enforcement background checks and pay an application fee;
- Demonstrate proficiency in the English language and a knowledge of United States history; and
- Have not committed a felony or other serious crimes and do not pose a security threat to the United States
If approved, recipients would be granted conditional permanent status for eight years. Afterward, they can apply for citizenship. Although Congress has been debating versions of the Dream Act for years and has yet to become law, it has paved the way to creating DACA as a temporary, stop-gap measure until something more permanent can be passed.
The cost of living in limbo
Without a clear path to citizenship, the temporary status of DACA means that recipients must be in a constant state of uncertainty. The legal status allows for some federal and state benefits while prohibiting others. DACA recipients are not eligible for publicly-funded income-based assistance programs like Medicaid, “Obamacare” health insurance through the Affordable Care Act marketplace, or the Children’s Health Insurance Program. Students are also prohibited from receiving federal student aid.
However, DACA recipients can receive health insurance from their employers and access driver’s licenses in all 50 states. DACA recipients are also no longer barred from accessing mortgages insured by the Federal Housing Authority, opening up the doors to homeownership. State-funded student aid and in-state tuition are also available in some states for recipients working towards a higher-education goal.
Specifically, DACA students are eligible to receive financial aid in Arkansas, Connecticut, Maryland, New Jersey, Oregon, and Washington. State-funded financial aid is available to DACA students in California, Connecticut, Hawaii, Maryland, Minnesota, New Jersey, New Mexico, New York, Oregon, Texas, Washington, and the District of Columbia. The ability to receive a professional or occupational license, such as nursing, teaching, occupational therapy, and more, varies from state to state.
If DACA is rescinded again, recipients could be in danger of losing some or all access to much-needed resources and funding. The constant instability prevents many young people from moving forward and creating new opportunities to enhance their lives and the possibility of economic contributions back to their community. However, if Congress can pass legislation allowing Dreamers to become permanent residents, our country will benefit from investing in entrepreneurs, job-creators, health care workers, teachers, scientists, innovators, and more.
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