Do You Need an Attorney to Apply for Deferred Action for Childhood Arrivals (DACA)?

One of the most common questions asked since June 15th when President Obama announced Deferred Action for Childhood Arrivals (DACA) is, "Do I need an immigration attorney to help me apply?"  Many respected voices in the immigrant community are saying that the application process and form will be so simple that people won’t need an attorney to apply.  Others are saying that too little is known about the program and it is not yet time to consult with an attorney.  We disagree.

Before explaining why the help of a competent attorney is so important, we share the concern that many have had since DACA was announced.  We have learned from history the sad lesson that immigrants are vulnerable to being exploited and harmed by dishonest and self-serving individuals such as notarios, consultants, and even attorneys.  Unsuspecting immigrants are scammed out of their hard-earned money by those who do not follow through with their promises or, worse yet, who "help" them apply for benefits for which they do not qualify.  Not only have the financial losses been great, but so have the immigration consequences, many times resulting in a person being deported from the United States.  In other cases, many immigrants have also been harmed by those who mean well and who genuinely want to help, but who unfortunately are not aware of the legal complexities of such programs and lack the competence to help someone.  Unfortunately there are likely to be those in our community who once again view this new program as an opportunity to make a quick buck off a vulnerable population that is desperate to obtain legal status in the United States.  It is important for the immigrant community to be warned about these concerns and to be very cautious about how they proceed.  But this does not mean that immigrants do not need to seek competent legal advice about the program.

Although the U.S. Department of Homeland Security (DHS) released additional information and guidance about DACA on August 6th, the application form and specific instructions about the application process will not be released until August 15th, which is the first day that anyone may apply. Although it is possible that the forms will be fairly short, it is not the length of the form that creates the need for an attorney.  It is the need to understand the risks of applying and any alternatives available to a particular person, including the choice of documents being presented and how to present them.

You would not go into a police station and turn yourself in for a crime you committed, without first speaking with your attorney.  Similarly, you should not file for DACA without at least consulting with an experienced and competent immigration attorney.  Although it may be the best alternative for many young people, a competent attorney will be able to help you identify and consider the potential risks and issues of DACA before you "turn yourself in".

Here are some of the risks and issues with DACA that should be considered: 

• What happens after the first two years?
• What happens after the elections?
• Will information in the applications be kept confidential?
• Will unqualified family members (spouse, parents, siblings) be at risk based on information in the applications?
• What if I'm not currently enrolled in school?
• What is a significant misdemeanor?
• Does my juvenile record hurt me?
• Will I have permission to travel out of the country?
• Will that travel trigger the three or ten year bars?
• Will I qualify when I turn 15?
• What about those who are in detention and who can't enroll in a GED program?
• What about kids who are home-schooled?
• Will there be an interview?
• Will they try to deport me if the program goes away?

The risks are significant and these issues are complex.  They require the help of a competent attorney right now so you can make an informed choice about whether to apply.

DACA may not be the best choice for everyone.  Occasionally other alternatives may be available that have not been explored if you have never spoken to an attorney about your situation.

Some underestimate how challenging it can be to prove you are eligible.  What if you do not have the documentation that the government decides is acceptable?  If you don't have those documents, attorneys often can help you figure ways to get them or other alternatives.  An experienced immigration attorney can also help you choose which documents should be presented, so as to minimize risks to employers and family members who are not eligible for Deferred Action.

Finally, if you choose not to go to an attorney but instead go to a notario or immigration consultant, realize that these people are not easily regulated.  There are many good community-based organizations, especially those that are accredited by the Board of Immigration Appeals, that can provide competent and affordable assistance and who know when to call an attorney for help.

We have been hired too many times to clean up the mess after someone not authorized to practice law or someone who is not competent to help, even with the best of intentions, has done it wrong.  Those cases frustrate us because often we can't fix the damage that has been done, which is especially troubling when we know that we could have done it right the first time.

There are many good attorneys in United States who are capable and competent to help you.  We strongly suggest that you look for an attorney who is a member of the American Immigration Lawyers Association (AILA), who is experienced in advising clients about immigration matters, who will take the time that your case needs and deserves for you to understand not only the potential benefits of the program, but also the potential risks of applying, and who will answer all your questions and address all of your concerns.

In the end, the decision to consult with an attorney is very personal and one that only you can make.  Proceed with caution; ask lots of questions; and make sure you understand the risks and potential issues before you apply.  Remember that this could be one of the most important decisions you make for you and your family.

To schedule an appointment to discuss DACA and if it is the best option for you, with a qualified and experienced Kuck Immigration Partners attorney, please fill out the form located on our website at www.immigration.net.