(PDF) DACA FAQs
(produced for Harvard University)
The responses to the FAQs listed below are informational and do not constitute legal advice. Every case is different, and advice will vary depending on the individual circumstances of each student. If you are a current undocumented or DACAmented Harvard student, whether at the College or in a graduate program, please contact the Harvard Immigration and Refugee Clinic (email@example.com) as soon as possible to set up an individual consultation. We strongly recommend that you *do not* leave the country without first consulting an immigration expert with the Clinic or otherwise. This guidance is valid as of May 2, 2017 at 5 p.m. Please note that the situation with respect to travel is fluid, and we will update these FAQs as frequently as possible.
What is DACA?
Deferred Action for Childhood Arrivals or DACA is a program established by former President Obama in June 2012. Under DACA, the Department of Homeland Security defers taking action to remove qualifying undocumented immigrants, commonly known as DREAMers, and also grants renewable term-limited work authorization. DACA status is subject to renewal every two years.
In order to be eligible for DACA, an individual must:
(1) have come to the United States before he or she turned 16;
(2) have lived continuously in the United States since June 15, 2007, up to the present time;
(3) be under the age of 31 as of June 15, 2012;
(4) have been physically present in the United States on June 15, 2012, having no lawful immigration status at the time he or she requests consideration of deferred action with USCIS;
(5) be in school, have graduated or obtained a certificate of completion from high school, have obtained a general education development (GED) certificate, or be an honorably discharged veteran of the Coast Guard or Armed Forces of the United States; and
(6) not have been convicted of a felony, significant misdemeanor, or three or more other misdemeanors and must not pose a threat to national security or public safety.
DACA does not provide lawful immigrant status nor a path to citizenship, but it does provide authorization to work and the government’s assurance that the person may remain in the United States without being placed in removal proceedings. More information about DACA can be found at: https://www.uscis.gov/humanitarian/consideration-deferred-action-childhood-arrivals-daca.
Can the President change immigration programs without Congressional approval?
The President can, without Congressional approval, attempt to change any immigration policy or action related to the way removal actions against undocumented immigrants are prioritized. Additionally, the President can change the way applications and waivers are processed. Programs that may be affected include Deferred Action for Childhood Arrivals (DACA); the designation of certain countries for purposes of Temporary Protected Status (TPS); the parole-in-place program for spouses, children and parents of active or reserve U.S. military personnel; the I-601(A) provisional waiver program for people with unlawful presence; work permits for spouses of H1-B visa holders; and optional practical training (OPT) for international students. Each of these programs is potentially subject to change through some form of executive action.
How will the recent executive actions impact me?
There are three immigration-related executive orders (EOs) that have altered enforcement priorities in the United States. However, so far none of the EOs have been enforced or interpreted in such a way as to negatively impact the DACA program. Indeed, one of the EOs includes language aimed expressly at preserving DACA in the near term. At this point it is unclear what the current administration will do with the DACA program, but there have been some reassurances from the administration that there is no current intention to revoke the program nor are DACA recipients an immediate target of the current administration.
The order substantially broadens the categories of undocumented persons prioritized for detention and removal, making potentially every undocumented individual a priority for removal. It authorizes the hiring of 10,000 additional Immigration and Customs Enforcement (ICE) officers to enforce the law and allows law enforcement to pursue the removal of all undocumented immigrants under the 287(g) program, which empowers (but does not require) state and local law enforcement to enforce immigration laws. It removes the Priority Enforcement Program (PEP), which prioritized removal of undocumented immigrants who had committed an offense listed in the DHS civil immigration enforcement priorities. Additionally, the order seeks to punish “sanctuary jurisdictions” that do not comply with federal law. On April 25, 2017, a federal court in California ruled that the provisions in the order relating to sanctuary jurisdictions were unlawful and unenforceable.
This executive order calls for building a border wall between the US and Mexico; calls for the detention of all persons unlawfully attempting to enter the United States and all persons in removal proceedings; directs DHS to immediately construct detention facilities at or near the southern border; limits the use of parole; calls for the expanded use of “expedited removal” to include potentially anyone in the United States who cannot prove s/he has lived here for at least two years based on forthcoming regulations; prioritizes the criminal prosecution of unlawful entry into the United States; and calls for removal of individuals to “the territory from which they came” pending their removal proceeding.
On Monday, March 6, President Trump signed a revised travel ban Executive Order entitled “Executive Order Protecting the Nation From Foreign Terrorist Entry Into the United States.” This new Executive Order revoked the prior January 27, 2017 Executive Order as of the effective date of March 16, 2017 at 12:01am EST.
The new order includes the following provisions: 1) Bans travel/visa admissions for foreign nationals from six listed countries—Iran, Libya, Somalia, Sudan, Syria, and Yemen—for 90 days after March 16, if they were outside of the U.S. on the effective date of the order without a valid visa as of that date or as of January 27; 2) Does not revoke valid visas; 3) Does not bar entry by dual nationals with travel documents issued from other, unlisted countries or lawful permanent residents (LPRs); 3) Provides for heightened scrutiny of Iraqi nationals, although Iraq was removed from the list of banned countries identified in the previous Executive Order; and 4) Creates a new registry documenting crimes committed by foreign nationals.
On March 15, 2017, a federal judge in Hawaii issued a nationwide temporary restraining order (TRO) blocking the six-nation travel/visa ban and suspension of refugee processing announced by President Trump’s March 6, 2017 Executive Order. This same judge granted a motion on March 29, 2017 to transform the TRO into a preliminary injunction. Unlike a TRO, a preliminary injunction will stay in place throughout the entirety of the litigation in Hawaii, absent a reversal by a higher court. Furthermore, another judge in Maryland issued a nationwide preliminary injunction against the travel/visa ban on March 15, 2017. While these court orders mean that the March 6, 2017 Executive Order is not currently in effect, litigation continues. The government has appealed both decisions, and arguments on the appeals are set for later in May.
If I have DACA and the program is terminated, will I be deported?
At this point it is unclear what the current administration will do with the DACA program, but there have been some reassurances from the administration that there is no current intention to revoke the program. Although the administration could revoke DACA and choose to issue a “Notice to Appear” in removal proceedings for DACA recipients, it is unclear whether the administration would take that step. Alternatively, the administration could chose to take no action and let the DACA program expire.
If DACA expires or is revoked, a DACA recipient cannot be deported without an opportunity to present his or her case in court, unless the DACA recipient has a prior removal order. ICE can enforce prior removal orders for DACA recipients without initiating new removal proceedings. DACA recipients with prior removal orders should contact an attorney to discuss the possibility that the government might reopen their cases.
If you are a Harvard University student – college or graduate student – please contact the Harvard Immigration and Refugee Clinical Program’s (HIRC) Staff Attorney, Jason Corral, for a consultation as soon as possible. To make an appointment, please call the HIRC paralegal, Nilce Maldonado at 617-495-6648 or email her at firstname.lastname@example.org.
What happens if the new Administration revokes DACA while I am in the process of renewing my application?
It is unclear what USCIS will do about pending renewal applications if the new Administration revokes DACA. Note, however, that it usually takes about 120 days to process a renewal application; if DACA is revoked and your renewal application is still pending, the paid application fee ($495 beginning December 23, 2016) would most likely not be returned.
I never applied for DACA, but I am eligible. Should I apply now?
If you have never applied for DACA but believe you may be eligible, please contact the Harvard Immigration and Refugee Clinical Program’s (HIRC) Staff Attorney, Jason Corral for a consultation as soon as possible. To make an appointment, please call the HIRC paralegal, Nilce Maldonado at 617-495-6648 or email her at email@example.com.
The administration’s policy is unclear as of yet, and risks for new applicants include losing their application fee ($495 as of December 23, 2016 for the DACA application). Additionally, the information provided on the DACA application could potentially be used by the government to initiate removal proceedings and meet its burden of proving a charge of inadmissibility. Under the program, as established and operated by the Obama administration, even if the application were denied, the applicant’s information was not be shared with Immigration and Customs Enforcement (ICE) unless the case involved criminal activity, fraud, or a threat to national security or public safety. However, the Trump administration’s policies regarding DACA are still unclear, so the safest route for potential first-time applicants is to do a consultation with a trained lawyer before deciding whether to apply.
If you have any questions about your particular case, you are encouraged to speak with the Harvard Immigration and Refugee Clinic – firstname.lastname@example.org.
I currently have DACA. Will I still be able to work with my DACA work permit under the new administration?
The current administration has made no statement indicating an intention to revoke DACA work permits that have already been issued. Additionally, DACA and EAD applications have been renewed since Trump’s inauguration. Nonetheless, because DACA was created by executive action rather than by Congress or an agency’s notice-and-comment rule-making, most legal experts agree that it can be rescinded by the President through executive action, without any legislation or formal federal rulemaking.
Note that DACA is an exercise of prosecutorial discretion, and that any single instance of deferred action can be terminated at any time at the discretion of the Department of Homeland Security. However, the process for revoking a currently valid work authorization requires notice to the holder of work authorization and would be bureaucratically challenging to administer.
The administration could instead let the permits issued through DACA expire without allowing renewal after the current period of work authorization expires. As of now, it is unclear what action, if any, the new Administration may take against DACA recipients. Additionally, there may be other legal options for you to work in the U.S., so, you may wish to speak with the Harvard Immigration and Refugee Clinical Program’s (HIRC) Staff Attorney, Jason Corral. To make an appointment, please call the HIRC paralegal, Nilce Maldonado at 617-495-6648 or email her at email@example.com to determine if you are eligible for some other form of immigration protection.
Does Harvard admit and enroll undocumented students? Are they eligible for financial aid?
Harvard admits, enrolls, and provides financial aid to students without regard to their citizenship or immigration status. There is no state or federal law that prohibits enrolling undocumented students. While undocumented students typically are not eligible for federal financial aid, students can still receive grants and loans from Harvard or other sources. In addition, under certain circumstances, the University may provide an undocumented student with financial assistance to cover costs like the $495 DACA application fee. If you have any questions about your particular case, you should arrange to speak with the Harvard Immigration and Refugee Clinical Program’s (HIRC) Staff Attorney, Jason Corral, as soon as possible. To make an appointment, please call the HIRC paralegal, Nilce Maldonado at 617-495-6648 or email her at firstname.lastname@example.org.
Will I lose my financial aid from Harvard if my DACA is revoked?
No. Undocumented students and students with deferred action status rely on the same grants and loans from Harvard as international students. Because your financial aid does not come from the federal government, your financial aid is not dependent on DACA.
For more information, contact the Harvard College Financial Aid Office, if you are an undergraduate student. If you are a graduate student, contact the financial aid office for your relevant school.
What does being a sanctuary campus mean? How am I protected if Harvard is not one?
The “sanctuary campus” label is based on the “sanctuary city” concept. The general idea is that the institution, be it a university or city, has a policy of not voluntarily turning over undocumented immigrants to federal immigration officials and will not voluntarily assist with immigration enforcement efforts. Cambridge has designated itself a sanctuary city. While Harvard has declined to declare itself a sanctuary campus, it has longstanding policies that provide similar protections. The University does not voluntarily share information on the immigration status of undocumented community members, and federal officials attempting to enforce immigration laws on campus are required to obtain a judicial warrant.
Consistent with the policies of both Cambridge and Boston, Harvard’s Police Department also does not inquire about the immigration status of any Harvard-affiliated persons it encounters. Furthermore, the Harvard Immigration and Refugee Clinic provides confidential legal advice to members of the Harvard community.
If you are a Harvard student with concerns about your immigration status, please contact the Harvard Immigration and Refugee Clinical Program’s (HIRC) Staff Attorney, Jason Corral. To make an appointment, please call the HIRC paralegal, Nilce Maldonado at 617-495-6648 or email her at email@example.com, as soon as possible, in order to set up a free in-person consultation.
The University is continuing to develop new resources and policies in response to unfolding circumstances and the concerns of the community.
For additional resources:
See President Faust’s statement:
Undocumented at Harvard:
See below for University and campus police policies regarding immigration enforcement on campus and information sharing.
University and Campus Policies
“Chief Francis D. Riley of the Harvard University Police Department (HUPD) issued a message restating the HUPD’s practice of not inquiring about the immigration status of faculty, students, or staff and noting that the department is not involved in enforcing federal immigration laws. This is consistent with the policies of the cities of Boston and Cambridge. Furthermore, the University does not and will not voluntarily share information on the immigration status of undocumented members of our community. And, as a matter of longstanding policy, law enforcement officials seeking to enter campus are expected to check in first with the HUPD and, in cases involving the enforcement of the immigration laws, will be required to obtain a warrant.”
President Faust, University-wide email 11/28/16: http://www.harvard.edu/president/news/2016/supporting-our-community
You can read Chief Riley’s message in its entirety here.
How does Harvard protect the privacy of students’ personal information?
Harvard University, while not technically a “sanctuary campus,” has a policy of protecting students’ personal information, including immigration status.
Regarding immigration status, the Harvard Administration has previously stated: “While we will not declare Harvard a ‘sanctuary campus’, we have made clear that the Harvard University Police Department does not inquire about the immigration status of faculty, students, or staff, and the department is not involved in enforcing federal immigration laws. The University does not and will not voluntarily share information on the immigration status of undocumented members of the community, and law enforcement officials seeking to enter campus must first check with campus police and obtain a warrant for cases involving immigration laws.”
Are there exceptions to the general rule that Harvard won’t disclose a student’s personal information?
Harvard may be legally required to disclose a student’s personal information if it receives a valid, enforceable request from law enforcement or a court, such as a warrant or administrative or judicial subpoena.
What kind of safety plan should I come up with?
- Have your immigration information in a place that is quickly accessible and let a family member or friend with immigration status know where this information is, so that he or she can easily access it in case of an emergency.
- Memorize the phone numbers of a qualified lawyer and of a family member or friend with lawful immigration status whom you can call if picked up by ICE
- Know what rights you have and what course of action you will take when speaking to immigration enforcement officials. Under the U.S. Constitution, whether you are undocumented or not, you have, for example:
- The right to remain silent;
- The right to refuse to open your door to immigration or law enforcement officials who do not have a signed judicial warrant;
- The right to a lawyer (in immigration proceedings, at your own expense); and
- The right not to sign any document without first speaking with a lawyer.
Here is a tool that can help to organize your information: http://michiganimmigrant.org/resources/library/family-emergency-checklist-english
For further information, see:
What rights do I have even if I don’t have documentation?
Regardless of your immigration or citizenship status, you have certain constitutional rights.
Your rights include:
- The right to remain silent.
- The right to refuse to consent to a search of yourself, your car, or your home without a judicial warrant.
- If you are not under arrest, you have the right to leave. You should do so without incident to avoid potentially violating other laws that can be cause for arrest.
- The right to a lawyer if you are arrested. Ask for one immediately.
For more information:
Where can I be targeted? Are places like churches and/or schools safe from enforcement?
Historically, ICE has had a policy of not targeting individuals within the confines of the following types of institutions. However, ICE may still target individuals traveling to and from these institutions or it may change its policies entirely towards these “sensitive locations.”
- Current ICE policies provide that the agency will attempt to avoid raids or arrests near sensitive locations such as:
- Schools, including known and licensed daycares, pre-schools and other early learning programs; primary schools; secondary schools; post-secondary schools up to and including colleges and universities; as well as scholastic or education-related activities or events, and school bus stops that are marked and/or known to the officer, during periods when school children are present at the stop;
- Medical treatment and health care facilities, including hospitals, doctors’ offices, accredited health clinics, and emergency or urgent care facilities;
- Places of worship, including churches, synagogues, mosques, and temples;
- Religious or civil ceremonies or observances, such as funerals and weddings; and;
- During public demonstrations, such as a marches, rallies, or parades.
Can immigration officials conduct deportation activities on Harvard’s campus?
Currently the Department of Homeland Security (DHS) has a policy of not taking “enforcement actions” at “sensitive locations,” including colleges and universities. For more information, see: https://www.cbp.gov/border-security/sensitive-locations-faqs. Enforcement actions covered by this policy include arrests, interviews, searches, and surveillance.
Is it safe to go to the police or to court?
Individuals should go to the police if they feel as though they are in danger. There may be additional immigration benefits available to victims of a crime if they can show they were helpful in the investigation of the crime.
Among others, the following cities in the Boston area have declared themselves “sanctuary cities,” meaning that they will not cooperate with ICE except as required by law:
- “Will not honor ICE detainer without a criminal warrant.”
- “Will not honor ICE detainer unless in cases where immigration agents have a criminal warrant or Cambridge officials have a legitimate law enforcement purpose not related to immigration.”
- “Will not honor ICE detainer unless in cases where immigration agents have a criminal warrant or Cambridge officials have a legitimate law enforcement purpose not related to immigration.”
If you are already in immigration proceedings, it is important that you attend all hearings in immigration court. If you do not attend, immigration judges will issue an order of deportation against you.
If you have a matter in civil or criminal court, please contact an immigration attorney. If you are a Harvard student, please contact the Harvard Immigration and Refugee Clinic’s Staff Attorney, Jason Corral. To make an appointment, please call the HIRC paralegal, Nilce Maldonado at 617-495-6648 or email her at firstname.lastname@example.org.
As a DACA recipient, is it safe for me to protest and march in rallies?
The Trump Administration has expanded the definition of “criminal alien” for the purpose of prioritizing deportations. If you are arrested at a protest or rally (e.g., for blocking the road), you may fit under the definition of “criminal alien” and be subject to removal.
There are a few precautionary measures you can take if you do plan to attend a protest.
- Check with the organizers to see if they have applied for a permit for the protest. Often, a permitted protest is coordinated ahead of time with authorities to ensure participants’ safety.
- Make sure you have the contact information for a lawyer available. The National Lawyer’s Guild has legal support hotlines available for people participating in political actions: https://www.nlg.org/massdefensecommittee/.
What should I do if I am detained at an airport?
If you have a lawyer, you should let CBP/ICE/TSA know that you would like to speak with him or her.
If you do not have an attorney, call the local ACLU hotline. To find your local ACLU number, go to https://www.aclu.org/about/affiliates?redirect=affiliates.
There is also an app available to connect with a lawyer in certain airports, including Boston, through AirportLawyer.org.
If you are a Harvard student, please contact the Harvard Immigration and Refugee Clinical Program’s (HIRC) Staff Attorney, Jason Corral. To make an appointment, please call the HIRC paralegal, Nilce Maldonado at 617-495-6648 or email her at email@example.com.
Additionally, the ACLU has prepared a “Know Your Rights” document regarding what to do when encountering law enforcement at airports and other ports of entry into the U.S.
Can my family members and I fly to Puerto Rico with a driver’s license but no passport?
Traveling within 100 miles of the U.S. border may expose individuals to detection, arrest, and detention by Customs and Border Protection (CBP) operating various checkpoints along these routes. It is possible to travel to Puerto Rico, a U.S. territory, with a government-issued ID such as a driver’s license, but there are risks to doing so. People may at times be asked to prove their immigration status. If you have any questions about travel plans, please contact the Harvard Immigration and Refugee Clinical Program’s (HIRC) Staff Attorney, Jason Corral. To make an appointment, please call the HIRC paralegal, Nilce Maldonado at 617-495-6648 or email her at firstname.lastname@example.org. We strongly urge you *not* to leave the country without first consulting an immigration expert with the Clinic.
For students considering applying for DACA, any unauthorized travel outside of the United States will most likely prevent you from to returning to the United States and may seriously impair your ability to apply for any future immigration remedies. Additionally, unauthorized travel on or after Aug. 15, 2012, may interrupt your continuous residence and make you ineligible for deferred action. Any travel outside of the United States that occurred on or after June 15, 2007, but before Aug. 15, 2012, will be assessed by U.S. Citizenship and Immigration Services (USCIS) to determine whether the travel qualifies as brief, casual, and innocent. As mentioned previously, if you have any questions about travel plans, please contact the Harvard Immigration and Refugee Clinical Program’s (HIRC) Staff Attorney, Jason Corral. To make an appointment, please call the HIRC paralegal, Nilce Maldonado at 617-495-6648 or email her at email@example.com. We strongly urge you *not* to leave the country without first consulting an immigration expert with the Clinic.
CAUTION: If you leave the United States after being ordered deported or removed, USCIS will likely consider you deported or removed. This may make you ineligible to return to the United States in the future.
I have DACA/TPS and am or was planning to go abroad with advance parole. What should I do?
If you are a DACA/TPS recipient, we strongly urge you not to leave the country after January 20, 2017. DACA, TPS for certain countries, and advance parole are discretionary programs that may be withdrawn by the administration, and you may not be able to gain re-entry. If you have any questions about your particular case, please contact the Harvard Immigration and Refugee Clinical Program’s (HIRC) Staff Attorney, Jason Corral, before making your travel arrangements and before leaving the country. To make an appointment with Mr. Corral, please call the HIRC paralegal, Nilce Maldonado at 617-495-6648 or email her at firstname.lastname@example.org.
What are the 3- and 10-year bars, and how do they apply to me?
U.S. immigration law provides that certain persons who have been unlawfully present in the United States for a period of time may, if they leave or are removed from the U.S., be barred from reentry for either three or ten years, depending upon the duration of their unlawful presence. The law provides for exceptions, and so application of these bars will depend upon each individual case. You should consult with Jason Corral at the Harvard Immigration and Refugee Clinical Program to determine the potential impact of the 3- and 10-year bars on your eligibility for immigration protection. To make an appointment with Mr. Corral, please call the HIRC paralegal, Nilce Maldonado at 617-548-8848 or email her at email@example.com.
I am an ally. How can I help?
Bi-partisan legislation, called the BRIDGE Act, was recently introduced in Congress and would provide protection to DACA recipients. You can call your Congressperson and advocate for passage of the BRIDGE Act. For more information, see: