What Is a Significant Misdemeanor Under DACA: Offenses and 90-Day Rule

A significant misdemeanor under DACA is a criminal conviction that automatically disqualifies you from initial approval or renewal of deferred action. Federal regulation defines it two ways: any conviction for one of six specifically named offenses, regardless of the sentence, or any other misdemeanor where the court ordered more than 90 days of actual custody. A single conviction in either bucket means USCIS cannot approve your request.¹

The Six Offenses That Disqualify You Regardless of Sentence

For these six categories, the sentence a judge imposes does not matter. A fine, community service, or a single day in jail still triggers the bar:

Domestic violence: any conviction involving harm or threat of harm against a family member, household member, or intimate partner.
Sexual abuse or exploitation, including offenses against minors.
Burglary: unlawful entry into a structure with intent to commit a crime inside.
Unlawful possession or use of a firearm, whether or not anyone was injured.
Drug distribution or trafficking. Simple possession for personal use is not in this category.
Driving under the influence of alcohol or drugs.

The DUI rule catches many applicants off guard. Even if your state classifies a DUI as a traffic offense rather than a criminal misdemeanor, USCIS still treats it as a significant misdemeanor for DACA purposes.¹

The 90-Day Custody Rule

Any misdemeanor outside the six named categories can still be a significant misdemeanor if the court sentenced you to more than 90 days in custody. What matters is what the judge ordered as active time, not the total length of the sentence or the time you actually served.¹

Two exclusions shape the math:

Suspended time does not count. If a judge imposed 120 days but suspended 60, only the 60 active days are counted. That falls below the threshold, so the conviction would not be a significant misdemeanor on this basis.
Immigration detention does not count. Time you spent in jail solely because a local agency honored an ICE detainer is excluded from the calculation.²

Because USCIS relies on official court records, certified dispositions that clearly separate active from suspended time are essential. A record showing only a total sentence, without breaking out the suspended portion, invites the worst-case reading.

How “Misdemeanor” Is Defined for DACA

DACA uses the federal definition, which frequently does not match the label your state uses. A misdemeanor for these purposes is any crime with a maximum possible sentence of more than five days and no more than one year in jail.¹

Two mismatches happen often. Some states call an offense a felony even though its maximum penalty is only a year; federally, that is a misdemeanor. Other states call an offense a violation or infraction even though its maximum exceeds five days; federally, that is a misdemeanor too. The question is always the maximum sentence the statute allows, not the state label and not the sentence you actually received. If the maximum possible punishment is five days or less, the offense falls below the federal misdemeanor floor and does not count toward any DACA criminal bar.

Three Non-Significant Misdemeanors Also Bar You

A separate rule catches applicants who assume only serious offenses matter. Three or more misdemeanor convictions, even where none of them individually qualifies as a significant misdemeanor, will bar you from DACA.²

Charges arising from the same incident on the same date, or from the same course of conduct, count as one offense. If a single arrest produced two misdemeanor convictions, those count as one toward the three-misdemeanor limit.¹ Three misdemeanors from separate incidents on different dates, however, will disqualify you just as certainly as a single significant misdemeanor.

What Does Not Count Against You

Several categories are carved out of the automatic bars, though USCIS can still weigh them in its overall discretionary review.

Minor Traffic Offenses

Speeding tickets and driving without a license are not treated as misdemeanors for DACA’s criminal bars.² The line matters. Reckless driving that your state classifies as a misdemeanor with a maximum penalty above five days is not minor for these purposes and can count toward the three-misdemeanor rule or, with more than 90 days of ordered custody, become a significant misdemeanor. DUI is never a minor traffic offense under DACA, regardless of state classification.

State Immigration-Related Offenses

Convictions under state or territorial laws that criminalize immigration-related conduct, such as working without authorization or failing to carry immigration documents, are excluded from DACA’s criminal bars.¹

Expunged Convictions

An expunged conviction is not a disqualifying conviction under the regulation. It will not trigger the significant misdemeanor bar or count toward the three-misdemeanor limit. USCIS will still see it in background checks and may consider it in the broader discretionary decision.²

Juvenile Adjudications

A finding of delinquency in juvenile court is not a conviction for DACA. If your case was transferred to adult court and you were convicted there, that conviction counts like any other. USCIS may still consider juvenile conduct when evaluating public safety.²

Simple Drug Possession

The regulation names distribution and trafficking as automatic significant misdemeanors but does not name simple possession. A conviction for possessing a small amount of a controlled substance for personal use with a sentence of 90 days or less is not automatically a significant misdemeanor.¹ It is still a misdemeanor, though, so it counts toward the three-misdemeanor total and will draw scrutiny during USCIS review.

Discretion Beyond the Automatic Bars

The criminal bars described above are absolute: hit one and USCIS cannot approve you. USCIS also has discretionary authority to deny a request even where no automatic bar applies, if it decides you pose a threat to public safety or national security.² USCIS has pointed to gang involvement, criminal activity that did not result in a conviction, and national security concerns as examples. A single non-significant misdemeanor can still work against you if the agency views it as part of a pattern.

The Risk of Filing With a Disqualifying Record

A denial based on a criminal conviction carries more risk than an ordinary DACA rejection. USCIS has stated it will not refer denied cases to ICE based on the denial alone, but it makes an explicit exception for denials involving criminal offenses, fraud, or public safety concerns. In those cases, USCIS may share your information with ICE for enforcement action.²

Because your record is re-evaluated at every renewal, a conviction that arose since your last approval can change the outcome. Anyone with a conviction that might fall inside one of the bars should get the criminal record analyzed, and the immigration implications resolved, before filing.

1
eCFR. 8 CFR 236.22 – Deferred Action for Childhood Arrivals
2
U.S. Citizenship and Immigration Services. Frequently Asked Questions