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Can you apply for DACA with a criminal record?

July 2, 2021
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Summary

The U.S. government conducts a criminal background check for most immigration applications. The reason is simple - to make sure that people who receive immigration benefits are people of good moral character. The Deferred Action for Childhood Arrivals (DACA) program is no different. As part of your application, you'll have to answer some questions about your criminal background. When U.S. Citizenship and Immigration Services (USCIS) is reviewing your DACA application, they'll check your criminal record for felonies, significant misdemeanors, and other crimes that disqualify you from getting DACA. This article explains what offenses will and may not disqualify you from DACA, and how to go about your application if you have a criminal record.

Overview

What is a criminal record?

A criminal record is the government’s account of your criminal history. Your criminal record may harm your Deferred Action for Childhood Arrivals (DACA) application.

U.S. Citizenship and Immigration Services (USCIS) is a Department of Homeland Security (DHS) agency. USCIS schedules biometrics appointments for DACA applicants. There, they’ll take your fingerprints, photos, and signature. USCIS will then conduct a background check using this biometric information. This background check will help them determine whether you qualify for DACA. It is crucial for DACA program applicants with criminal records to get extra legal help. You can find affordable legal resources on the USA.gov website.

What offenses on your criminal record disqualify you from DACA?

Certain criminal offenses will almost always disqualify you from DACA. These offenses include felonies, significant misdemeanors, and three or more non-significant misdemeanors. You also won’t qualify if the U.S. government thinks you’re a threat to public safety or national security. It is still possible to gain approval if you have these offenses on your record. But, you must show exceptional circumstances to gain DACA approval. Exceptional circumstances are those beyond your control. Cruelty against you or a relative counts as an exceptional circumstance. Severe illness or death in your family is also an exceptional circumstance.

Felony

Felonies lead to over one year of prison time. They are offenses at the federal, state, or local levels. If you have committed at least one felony offense, you likely won’t qualify for DACA.

Significant Misdemeanor

“Significant misdemeanors” are federal, state, or local offenses. They lead to over five days to one year of prison.

You won’t qualify for DACA if your significant misdemeanors include:

  • Domestic violence
  • Sexual abuse
  • Unlawful possession or use of a firearm
  • Drug distribution or trafficking
  • Burglary
  • Driving under the influence (DUI)
  • A significant misdemeanor with a jail sentence of over 90 days. A suspended sentence won’t count toward the 90 days.

Three or More Non-Significant Misdemeanor Offenses

You won’t qualify if you’ve committed three or more “non-significant misdemeanors.” These are federal, state, or local offenses punishable by five days to one year of imprisonment. They must have happened on different occasions to count against you.

Threat to Public Safety

U.S. Citizenship and Immigration Services (USCIS) might classify you as a threat to public safety if you've ever been a gang member or committed crimes. If this happens, you might still be eligible for Deferred Action for Childhood Arrivals (DACA). But, you’ll have to show exceptional circumstances. If you are a DACA applicant with a record, you may want to work with an immigration law expert. You can find an attorney for no or at a low cost on the government’s legal aid resources page.

Threat to National Security

U.S. Citizenship and Immigration Services (USCIS) may disqualify applicants who are potential national security threats. You may fall under this group if you have a history of anti-U.S., terrorist, or criminal activities. If this happens, you’ll have to prove exceptional circumstances to USCIS. If you’d like to, you can work with an attorney to help you gain approval. You can find affordable legal resources on USA.gov’s page.

U.S. Citizenship and Immigration Services (USCIS) will use its discretion to evaluate your criminal record. They rarely make exceptions for these crimes. But, you can still qualify by proving that you had exceptional circumstances. If you have a record, you need to speak with an immigration lawyer about your application.

What offenses on your criminal record won't immediately disqualify you from DACA?

Other common offenses won’t automatically disqualify you from getting DACA. These include state immigration-related offenses, traffic offenses, juvenile delinquency, and any expunged convictions. U.S. Citizenship and Immigration Services (USCIS) evaluates records case-by-case.

You can seek legal advice from USA.gov’s legal aid resource list.

Traffic offenses

U.S. Citizenship and Immigration Services (USCIS) won’t immediately disqualify you for minor traffic offenses. These offenses will not count as non-significant misdemeanors. For example, driving without a license won't automatically harm your chances.

State immigration offenses

U.S. Citizenship and Immigration Services (USCIS) won’t disqualify state immigration offenders. State immigration offenses are violations of U.S. immigration law. So, state convictions based on your immigration status won’t disqualify you. 

Juvenile convictions

U.S. Citizenship and Immigration Services (USCIS) won’t immediately disqualify juvenile offenders. You are a “juvenile offender” if you committed a crime before your 18th birthday. But, USCIS will not classify your conviction as a juvenile crime if you were a juvenile tried as an adult. In this case, USCIS will view your conviction as an adult crime.

Expunged convictions

You may have an expunged conviction or sealed conviction and arrest records. This means that a court destroyed the documents for your charges. These charges won’t show up on your criminal record. In this case, you probably don’t need to worry. An expunged conviction won’t immediately disqualify you.

Can I apply for DACA with a criminal record?

It depends on what offenses are on your criminal record. You may or may not be eligible for Deferred Action for Childhood Arrivals (DACA) with a record. If you have a non-disqualifying criminal history, you likely still have eligibility. But, U.S. Citizenship and Immigration Services (USCIS) decides each case by considering your full history. Note that any criminal conviction may result in a denial if USCIS has concerns over the risks an applicant might pose to others. So, you should seek out legal help before applying to become a DACA recipient.

Conclusion

Applying for Deferred Action for Childhood Arrivals (DACA) with a criminal record can be complicated, but working with a good immigration attorney can make it easier. If you can't afford the attorney fees and don't want to handle your first-time or DACA renewal case alone, we may be able to help. If you are eligible, our free web app will walk you through the process and help you prepare and file your application with the U.S. government. Click "Get Started" to see how we can help make your American dream come true!

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