Many immigrants come first to the United States as children of foreign workers in various temporary statuses, such as the H-4 for children of H-1B workers. They can remain in the United States in legal status until they turn 21 when they lose eligibility as a dependent “child” of the foreign worker. Many children will spend almost their whole young lives here in a temporary status, but never receive legal permanent residence—only the worst 21st birthday present imaginable. At least 100,000 kids will meet this fate and probably more than twice as many already have.

On June 15, 2012, nine years ago today, the Department of Homeland Security (DHS) announced the Deferred Action for Childhood Arrivals (DACA) program to provide lawful presence and work permits to immigrants who grew up in the United States (Dreamers). In addition to dreamers who had crossed the border illegally or already overstayed their visas, DACA memorandum seemed like this would help “legal” Dreamers who have no other way to stay in the country or work legally. The initial DHS memo that created the policy listed the following conditions that an applicant must meet:

  1. came to the United States under the age of sixteen;
  2. has continuously resided in the United States for a least five years preceding the date of this memorandum and is present in the United States on the date of this memorandum;
  3. currently in school, has graduated from high school, has obtained a general education development certificate, or is an honorably discharged veteran of the Coast Guard or Armed Forces of the United States;
  4. has not been convicted of a felony offense, a significant misdemeanor offense, multiple misdemeanor offenses, or otherwise poses a threat to national security or public safety; and
  5. is not above the age of thirty.

Legal dreamers meet all those criteria. But the form instructions for the actual DACA application released in August 2012 inexplicably added another requirement:

  • Had no lawful status on June 15, 2012;

In other words, this form instruction has prevented thousands of dreamers who had legal status in June 2012 from applying for DACA under a memo—which is still the basis for the program—that doesn’t exclude them. People who had crossed the border or had already overstayed by June 2012 can apply, but not those whose required departure dates were in the future at that point. I don’t know who might be able to answer why this change was made between June and August 2012, but I know that DHS could fix it very quickly by issuing a new form and new form instructions without this requirement.

When DHS originally requested comments on the form through the Federal Register, questioners simply took for granted that a grant of deferred action requires that the person be in unlawful status. Yet this was not the case even at the time. In 2009, USCIS created a deferred action program for widows and widowers of U.S. citizens who had died (leaving them unable to receive permanent residence if they had not been married for at least 2 years). Like DACA, USCIS created the widower program through policy memo, but unlike DACA, the form instructions did not limit eligibility only to those without legal status. A few months later, Congress removed the 2‐​year marriage requirement, rendering this deferred action program unnecessary, but its existence is a precedent for expanding DACA.

Even if DHS cannot grant deferred action to those with a current lawful status, there was no need in 2012 or now to require that the person have acquired illegal status in June 2012. Removing “on June 15, 2012” would provide a pathway for legal dreamers because they could simply apply before they age out, and DHS could grant deferred action on their age out date. This would mean that no legal dreamer would have to accrue even a day of unlawful presence if it were executed properly.

Whatever you think of the legality of DACA, there is no plausible reason for it to exclude legal dreamers so long as the courts continue to allow it to exist. It was entirely arbitrary to select June 15, 2012 as the date by which someone had to have lost legal status. A better policy would save thousands of bright, young, potential Americans here in the country in which they have grown up. Improve the Dream, a coalition of legal dreamers from around the world, submitted comments to DHS’s request for ways to improve the immigration system that suggested this reform. Hopefully, DHS is listening.

Commentary by David J. Bier. Originally published at Cato At Liberty.

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