Making Sense Of Yesterday’s USCIS DACA Guidance: Lawful Status vs. Lawful Presence

After the USCIS issued its supplemental DACA guidance yesterday, which included FAQs that stated individuals granted DACA are not considered to be “unlawfully present” in the US, I received many messages from DREAMers, reporters, and others wanting to know what it meant.  Has the USCIS declared that deferred action confers legal status?  If so, why does the USCIS guidance also plainly state that “deferred action does not confer lawful status upon an individual, nor does it excuse any previous or subsequent periods of unlawful presence”?

Can both be true? Yes. And here’s how:

The language of the USCIS guidance is very technical. Since 1997 the law has included the concept of “unlawful presence”.  It refers to noncitizens who remain present in the US after an illegal entry or the expiration of an authorized period of stay in the US, such as a visitor who fails to depart. A noncitizen who remains unlawfully present in the US for more than 6 months can be barred from returning for up to 10 years.

A few years ago USCIS issued consolidated guidance in which it interpreted “unlawful presence” for purposes of applying the bars to readmission.  USCIS said that aliens granted deferred action are considered to be in a period of stay authorized by the government.  It follows then that once a DREAMER is granted DACA his or her stay in the U.S. is authorized by the government, albeit temporarily, and he or she is lawfully present.

Why then does the USCIS say that DACA confers no lawful immigration status?

Because, lawful immigration status refers to an immigration benefit such as lawful permanent residency (green card), temporary visa classification, i.e. H-1B worker, B-1 visitor, or F-1 student, or the parole authority of the Department of Homeland Security.  Deferred action, including DACA, is an exercise of prosecutorial discretion in which the government has decided to temporarily defer removal action against a foreign national.  As the USCIS says on its website:

DHS will exercise prosecutorial discretion as appropriate to ensure that enforcement resources are not expended on low priority cases, such as individuals who came to the United States as children and meet other key guidelines.  Individuals who demonstrate that they meet the guidelines below may request consideration of deferred action for childhood arrivals for a period of two years, subject to renewal, and may be eligible for employment authorization.

Nevertheless, yesterday’s guidance is important; especially to individuals granted DACA who wish to drive.  Many states have a very difficult time understanding immigration law and discerning who is lawfully present and who is not. Some states have refused to issue drivers licenses to DACA grantees incorrectly reasoning that since deferred action does not confer lawful immigration status, individuals granted DACA are not authorized to be in the U.S.

While the federal government cannot force states to issue drivers licenses to individuals granted DACA,yesterday’s guidance makes it crystal clear that DACA is a period of stay authorized by the Department of Homeland Security.  Therefore, DREAMERs granted DACA should not be denied drivers’ benefits on the basis of their immigration status.

One final thought; the confusion over lawful immigration status and unlawful presence underscores the need for immigration reform. America needs a user-friendly immigration system; not a patchwork of rules and regulations so convoluted that it takes an immigration attorney to make sense of them.

About David Leopold
Past President American Immigration Lawyers Association (AILA), In-the-Trenches practicing immigration Attorney, Blogger, Activist, Photographer, Educator, World Traveler. All opinions are my own.

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