Fact Sheet

The U.S. Citizenship and Immigration Services (USCIS) has released a form that undocumented immigrant youth can use to apply for immigration protection under a new immigration opportunity known as “Deferred Action for Childhood Arrivals” (DACA). In this fact sheet, Lambda Legal provides answers to frequently asked questions about the application process, focusing on the needs of lesbian, gay, bisexual, transgender and questioning youth, and HIV-affected youth. Please note that this document is not intended to provide legal advice or guidance regarding any specific situation.

1. I am undocumented, can I apply for deferred action under DACA?

You may apply for deferred action under DACA if you:

• Were under the age of 31 as of June 15, 2012;
• Came to the United States before reaching your 16th birthday;
• Have continuously resided in the United States since June 15, 2007, up to present time;
• Were physically present in the United States on June 15, 2012, and at the time of making your request for consideration of deferred action;
• Are currently in school, have graduated or obtained a certificate of completion from high school, have obtained a general education development (GED) certificate, or are an honorably discharged veteran of the U.S. Coast Guard or Armed Forces; and
• Have not been convicted of a felony, significant misdemeanor, three or more other misdemeanors, and do not otherwise pose a threat to national security or public safety.

2. Does deferred action provide me with a “green card” or citizenship?

No. Deferred action is a form of prosecutorial discretion that does not provide a “green card” or path to citizenship. DACA is not comprehensive immigration reform. We still need comprehensive LGBT-inclusive immigration reform to create a path to legalization and U.S. citizenship for all immigrants.

3. Which felony, “significant misdemeanor” or other offenses may disqualify me from deferred action?

Criminal law—and how immigration will treat your criminal offenses—can be complex and technical. Please consult with an immigration lawyer for advice on your specific circumstances.

A felony is a federal, state, or local criminal offense punishable by imprisonment for a term exceeding one year. USCIS considers the following offenses to be “significant misdemeanors”: domestic violence, sexual abuse or exploitation, burglary, unlawful possession or use of a firearm, drug distribution or trafficking; and driving under the influence. These offenses are considered “significant misdemeanors” regardless of the sentence imposed. Other offenses may also be considered “significant misdemeanors” if you were sentenced to serve more than 90 days in custody. This does not include a suspended sentence.

Even if your offense is not listed as a “significant offense,” you may be ineligible for deferred action if you have been convicted of “three or more misdemeanor offenses.” Any misdemeanor for which you are sentenced to fewer than 90 days in custody may be counted toward the “three or more misdemeanor offenses.” But USCIS has announced that minor traffic offenses—like driving without a license—will not be considered a misdemeanor for purposes of this process.

4. How do I apply for deferred action?

To submit your application for deferred action, fill out an application for “Consideration of Deferred Action for Childhood Arrivals” (Form I-821D). Submit this form with an application for an employment authorization document (Forms I-765 and I-765-WS). If you fail to submit a completed For I-765, USCIS will not consider your request for deferred action.

Forms and instructions:

• deferred action
• employment authorization document

All the applications and forms should be submitted together (at the same time). Please remember that immigration law is complex and technical, and consult with an immigration lawyer for advice on your specific circumstances.

5. Are there application fees?

Yes, you should expect to pay a total of $465. This includes $85 for fingerprints and $380 for the work authorization document. USCIS will not consider your request for deferred action unless you include these filing fees.

Please note there are no fee waivers. However, there are very limited fee exemptions available. Requests for fee exemptions must be filed before you submit your request for deferred action without a fee. To be considered for a fee exemption, you should submit a letter and supporting documentation to USCIS demonstrating that:

• You are under 18 years of age, homeless, in foster care or under 18 years of age and otherwise lacking any parental or other family support, and your income is less than 150% of the U.S. poverty level.
• You cannot care for yourself because you suffer from a serious, chronic disability and your income is less than 150% of the U.S. poverty level.
• You have, at the time of the request, accumulated $25,000 or more in debt in the past 12 months as a result of unreimbursed medical expenses for yourself or an immediate family member, and your income is under 150% of the U.S. poverty level.

6. What evidence may be sufficient enough to attach to my deferred action application?

Each request for deferred action is reviewed on an individual, case-by-case basis. You may submit school, employment, hospital, medical, financial, banking, tax, insurance, travel, religious, church and/or military records to support your application. For many people, this may include leases, rent receipts, utility bills, pay stubs, W-2 forms, report cards, school letters, car registration and car insurance information. To demonstrate you are currently in school, that you graduated from high school, or that you have obtained a general education development (GED) certificate, you may include diplomas, GED certificates, report cards, school letters, and transcripts. USCIS may request more information or evidence from you. You will also need your passport or a translated and notarized birth certificate.

7. If my application is denied, can I appeal?

There is no process for an appeal. If your application is denied, USCIS may refer your case to Immigration Customs Enforcements (ICE) and they may place you in removal proceedings. But USCIS has indicated that if your case does not involve a criminal offense, fraud, or a threat to national security or public safety, you should not be referred to ICE.

8. I am living with HIV, can I still apply?

On January 4, 2010, the HIV ban on immigration was lifted. Your application for deferred action should not be denied or rejected based on your HIV status. You may apply for deferred action even if you are living with HIV or otherwise HIV-affected. If you feel you have been discriminated against on the basis of your HIV status, contact Lambda Legal's Help Desk.

9. Can my sexual orientation or gender identity disqualify me for deferred action?

USCIS may not deny your application for deferred action based on your sexual orientation or gender identity. If you feel you have been discriminated against on the basis of your sexual orientation or gender identity, contact Lambda Legal's Help Desk.

10. What other resources are available for me?

Lambda Legal's Help Desk staff responds directly to members of our communities who are seeking legal information and assistance with discrimination related to sexual orientation, gender identity and expression, and HIV status.

To see a compiled resource list of direct service providers for LGBTQ youth, please click here. 

If you notice errors or would like to request your resource is added, please contact Amy Cook at acook@lambdalegal.org.

Federal courts play a crucial role in the lives of lesbian, gay, bisexual, transgender people and those with HIV. Across the country, federal courts are deciding cases involving access to health care, employment protections, safety in schools, the freedom to marry, parenting rights, and family protections for same-sex couples.

LGBT people and those with HIV are an integral part of the fabric of America and are entitled to equality and liberty under the law. Yet, the federal courts—and the judges whose job it is to interpret the law and safeguard our civil rights— are not well understood by the public and many people fail to appreciate their importance. The nomination and confirmation of judges, who serve lifetime terms on the federal bench, must be a priority. Our federal courts should be staffed with a full complement of well-qualified and diverse judges who understand that the rights and liberties guaranteed by our Constitution apply equally to LGBT people. If we care about equality, we have to care about the courts.

BEVERLY SEVCIK & MARY BARANOVICH (CARSON CITY) Beverly Sevcik, 73, and Mary Baranovich, 76, have been together for more than 40 years and committed their lives to each other on October 2, 1971. Together, they raised three children and are now the proud grandmothers of four grandchildren. They have seen each other through thick and thin, in sickness and in health, and after four decades of sharing a life together want to commemorate their love for each other as other couples do: through marriage.

 

ANTIOCO CARRILLO & THEODORE SMALL (LAS VEGAS) Antioco Carrillo, 44, and Theodore (Theo) Small, 43, have been a loving, committed couple since 2006. Antioco knows that Theo is “the one” for him, because Antioco cannot see himself with anyone else. For Theo, Antioco is the essential ingredient that allows Theo to be his “best self.” They registered as domestic partners in 2010, but did so quietly and privately without friends or family because it was a sterile process in front of a notary. They want to celebrate their commitment to each other, but will only do so when they can legally marry and have a wedding with all of their loved ones.

 

KAREN GOODY & KAREN VIBE (RENO) Karen Goody (Karen G.), 51, and Karen Vibe (Karen V.), 37, have been engaged since December 2005. They have not registered as domestic partners because they do not want to enter into a second-class status. Marriage has played an important role in both their lives, with Karen G.’s parents having been married for 50 years before her father passed away, and Karen V.’s parents having been married for more than 40 years. They both want the opportunity to enter into such a state-sanctioned marriage to demonstrate the same depth of love and commitment that their parents did.

 

FLETCHER WHITWELL & GREG FLAMER (LAS VEGAS) Fletcher Whitwell, 37, and Greg Flamer, 39, have been together for over 14 years and are registered domestic partners in Nevada. In 2011, they adopted a baby girl, Hudson Whitwell. They worry that, as she grows up, Hudson will be deprived of a sense of belonging and may feel socially outcast because of her fathers’ inability to marry. They look forward to the day when Hudson can walk down the aisle at their wedding as their flower girl and understand that her parents’ commitment to one another—and their family—is as great as that felt by other couples who may marry.

 

MIKYLA & KATRINA MILLER (RENO) Mikyla, 29, and Katrina (Katie), 27, Miller began dating in 2004 and got married in California in 2008. Mikyla adopted Katie’s surname and is carrying the couple’s first child. Their daughter is due in July and will be named Amelia Love Miller, becoming the sixth generation in Katie’s family to have the middle name “Love.” Mikyla and Katie’s wedding ceremony in California was a joyous occasion that helped draw their families closer together. However, it was painful to have their marriage disregarded when they moved to Nevada. They have since registered as domestic partners, but still struggle to have their relationship respected in medical and other settings. After Amelia is born, they would like to insure her through Katie’s health insurance policy, but they can only do so if Katie formally adopts her own child, a burden and indignity that no married couple must endure.

 

ADELE TERRANOVA & TARA NEWBERRY (LAS VEGAS) Adele Terranova, 31, and Tara Newberry, 37, have been a loving, committed couple since 2005 and were married in California in 2008. They are the mothers of Evan, 2, and Emily, 3 months, and are registered domestic partners in both California and Nevada. They have encountered disrespect for their domestic partnership on many occasions, including a year-and-a-half-long battle to get Tara listed as Evan’s parent on his birth certificate and having hospital staff ask for the “real mom” during an emergency room visit. Official affirmation of their marriage by the state of Nevada would alleviate confusion about Adele and Tara being the “real moms.”

 

CAREN & FARRELL CAFFERATA-JENKINS (CARSON CITY) Caren, 53, and Farrell, 48, Cafferata-Jenkins have been together for 16 years. They are registered domestic partners in Nevada, and traveled to California in 2008 to marry. They are the mothers of Dean, 8, and Quinn, 7. They held a commitment ceremony in Reno in 2002 which they called a b’rit ahavah, Hebrew for “covenant of love,” because they could not call it a wedding. After returning to Nevada after their 2008 marriage in California, they felt as though the State “unmarried” them and they had to start over from scratch. Both Caren and Farrell’s parents have been married for more than 50 years, and Caren and Farrell yearn for the opportunity to follow in their parents’ footsteps and celebrate a golden anniversary.

 

MEGAN LANZ & SARA GEIGER (LAS VEGAS) Megan Lanz, 31, and Sara Geiger, 27, have been a committed couple since 2004 when they met in the music program at the University of Nevada Las Vegas. Sara proposed to Megan with the engagement ring that Sara’s father had given to her mother, and they were married in Canada in 2006. When Sara gave birth to their daughter, Jordan Geiger-Lanz, in 2009, hospital staff informed Megan that they would “let” her stay with Sara and Jordan, even though they didn’t “have to.” This experience highlighted the vulnerability of Megan’s relationship with her child that results from Nevada’s refusal to recognize the couple’s marriage.

 

This case is Sevcik v. Sandoval

Kate and Trish Varnum

Kate, 34, and Trish Varnum, 43, of Cedar Rapids, have been in a committed relationship for seven years. They live six blocks away from Kate’s childhood home and go to the church Kate grew up attending. They are conflicted when filling out forms because they can’t accurately check either the "single" or "married" box. Kate says, "Without marriage there is no way for me to declare who Trish is in my life."

Larry Hoch (left) David Twombley (right)

David Twombley, 67, and Larry Hoch, 66, of Urbandale, are both retired teachers who have been in a committed relationship for more than seven years. Larry and David are both active in their respective churches and Larry looks forward to teaching Sunday school this spring. They want to get married because as they age they increasingly feel vulnerable and wonder if their wishes will be respected during medical emergencies.

Dawn (left) and Jen BarbouRoske (right) with their daughters Breeanna (left) and McKinley

Dawn and Jen BarbouRoske, 40 and 38 respectively, of Iowa City, have been together for more than 18 years and have two children, McKinley, 10, and Breeanna, 6. Together, they formed a playgroup for gay and lesbian families called Proud Families. After Jen delivered McKinley eight weeks early, they realized that Dawn could be prevented from being with their daughter in the hospital because she was not legally related to either Jen or the baby — making an already stressful time more traumatic. Because they were not married, they had to leave their daughter in the neonatal intensive care unit at the hospital to seek the help of an attorney to draw up documents to protect Dawn’s rights. This experience highlighted just how important it is to be able to marry.

Reva Evans (right) and Ingrid Olson with their son Jamison

Ingrid Olson, 30, and Reva Evans, 34, of Council Bluffs, have been together for nearly 11 years and have a two-year-old son named Jamison. In 2004 they celebrated their devotion to one another with a ceremony attended by more than 200 friends and family. They want to marry so that their family will be treated fairly.

Chuck Swaggerty (left) and Jason Morgan with their sons Ta'John (left) and Reed.

Jason Morgan, 38, and Chuck Swaggerty, 36, of Sioux City, have been together for 11 years. Together they are raising their two sons, Ta’John, four, and Reed, two. They attend church together and enjoy restoring their house, where they someday hope to hold their wedding. When Chuck’s mother passed away suddenly, Jason needed to take bereavement leave from his new job to attend the funeral 10 hours away but wasn’t sure his employer’s policy recognized that Chuck and his mother were part of Jason’s family. Though he left a message for his manager explaining the situation, he didn’t receive a call back and sat through the funeral wondering if he would have a job when he returned home. Though he was not fired he did receive a mark on his personnel record for an unexcused absence. This experience reinforced their desire to get married.

Bill Musser (left) and Otter Dreaming (right)

Bill Musser, 50, and Otter Dreaming, 51, of Decorah, have been together for more than seven years. Bill plays in a Scandinavian old-time dance band and Otter is the coordinator and musician for the Northeast IowaUnitatrian-Universalist Fellowship, a piano teacher and childcare provider. They want to marry because they want their family to have access to the protections and responsibilites that only marriage provides.