Legal Insight · Criminal Law (State & Federal)
DACA, TPS, and a Florida Criminal Record: What Actually Disqualifies You
Deferred Action for Childhood Arrivals (DACA) and Temporary Protected Status (TPS) use two different, specific criminal-record tests, and neither matches Florida’s own sense of what counts as a serious charge. DACA bars a single felony, a single “significant misdemeanor” (a defined list including DUI, domestic violence, and burglary, regardless of the sentence actually imposed), or three or more other misdemeanors not arising from the same act. TPS bars a single felony or two or more misdemeanors of any kind, with no waiver and no exception for a minor offense. Both programs also treat a Florida withhold of adjudication as a conviction in most cases, the same federal definition covered elsewhere on this site, so a withhold does not sidestep either bar. Because USCIS re-checks criminal history at every DACA renewal and can move to terminate TPS on a later conviction, a new Florida arrest is rarely something a DACA or TPS holder can simply wait out. This article explains each program’s specific bars, how they differ, and where a Florida conviction fits.
This is general information about two federal programs, not legal advice for a specific case, and it does not predict how U.S. Citizenship and Immigration Services (USCIS) will decide any individual application or renewal.
Why this needs its own explanation
MK Law’s overview article on how criminal charges affect immigration status notes only that “criminal history may affect eligibility for, renewal of, or discretion under programs such as DACA, TPS and certain humanitarian benefits,” without saying which convictions actually trigger a problem. DACA and TPS are not “criminal grounds of inadmissibility” cases like a green card application, and they do not use the crime-involving-moral-turpitude framework covered in that article. Each program has its own, narrower, self-contained list of disqualifying criminal history, set by USCIS policy guidance for DACA and by statute for TPS. This article covers each list separately, because they do not overlap.
DACA’s criminal bars
DACA is a discretionary form of deferred action, not a visa or a green card, and its criminal-history rules come from USCIS policy guidance rather than a single statute. Under that guidance, a requestor is ineligible if they have been convicted of:
- A felony: any federal, state, or local offense punishable by more than one year in prison, regardless of the sentence actually imposed.
- A “significant misdemeanor”: a misdemeanor (an offense punishable by five days to one year) that involves domestic violence, sexual abuse or exploitation, burglary, unlawful possession or use of a firearm, drug distribution or trafficking, or driving under the influence. A conviction in any of these categories counts as significant regardless of the sentence the court actually imposed.
- Any other misdemeanor with 90 or more days of actual jail time imposed: a misdemeanor outside the significant-misdemeanor list above still disqualifies if the sentence imposed was 90 days or more in custody. A suspended sentence does not count toward the 90 days.
- Three or more misdemeanors of any kind, not arising from the same act: three or more misdemeanor convictions, not occurring on the same date and not arising out of the same act, omission, or scheme of misconduct, are disqualifying even if none of them is individually significant.
USCIS also applies a separate, discretionary “national security or public safety” standard on top of these bright-line bars, considering the totality of the circumstances, including gang involvement, on a case-by-case basis even where none of the specific bars above is technically met.
What this means for a typical Florida charge
| Florida offense | DACA treatment |
|---|---|
| DUI, § 316.193 | A significant misdemeanor by definition, one conviction disqualifies regardless of sentence |
| Domestic-related battery, § 784.03 with a domestic designation | A significant misdemeanor by definition, one conviction disqualifies |
| Petit theft (first offense), § 812.014 | Not on the significant-misdemeanor list; disqualifies only with 90+ days of actual jail time imposed, or as the third of three qualifying misdemeanors |
| Possession of marijuana under 20 grams, § 893.13 | Not itself “distribution or trafficking”; analyzed as an ordinary misdemeanor unless the facts show distribution |
| Any felony conviction, regardless of degree | Disqualifying regardless of sentence |
This table describes how the categories generally apply; it does not cover every Florida offense, and the same statute can be charged in ways that land differently depending on the specific facts and record of conviction.
TPS’s criminal bar
TPS uses a different, statutory test. Under 8 U.S.C. § 1254a(c)(2)(B)(i), a person is ineligible for TPS if they have been convicted of any felony, or of two or more misdemeanors, committed in the United States. Unlike many immigration bars, this one has no petty-offense exception and no discretionary waiver: it is a hard statutory cutoff.
This is separate from TPS’s other main eligibility requirement, that the applicant not be inadmissible under specified grounds in 8 U.S.C. § 1182(a). Congress gave TPS its own, broader waiver authority for most inadmissibility grounds “for humanitarian purposes, to assure family unity, or when it is otherwise in the public interest,” covered in 8 U.S.C. § 1254a(c)(2)(A). That waiver can reach many inadmissibility grounds. It does not reach the felony or two-or-more-misdemeanors conviction bar, which sits in a separate part of the statute and applies regardless of any waiver.
| DACA | TPS | |
|---|---|---|
| Felony bar | Any felony, any sentence | Any felony, any sentence |
| Misdemeanor bar | One “significant” misdemeanor (defined list), or three or more of any kind not from the same act, or one other misdemeanor with 90+ days served | Two or more misdemeanors of any kind, no special list |
| Legal source | USCIS policy guidance | 8 U.S.C. § 1254a(c)(2)(B)(i), a statute |
| Waiver available | Discretionary totality-of-circumstances review, not a formal waiver | None for this specific bar; TPS’s broader inadmissibility waiver does not reach it |
| When re-checked | Every renewal application | Initial registration and continuing eligibility; a later conviction can trigger termination |
Florida’s withhold of adjudication does not avoid either bar
A withhold of adjudication in Florida means the state court never entered a formal judgment of guilt. Federal immigration law does not follow that distinction. Under the definition used throughout federal immigration law, 8 U.S.C. § 1101(a)(48)(A), a “conviction” includes a case where the person pleaded guilty or no contest, or admitted facts sufficient for a finding of guilt, and the court imposed some form of punishment, penalty, or restraint on liberty, even without a formal adjudication of guilt. Probation alone can be enough to meet that second part. DACA and TPS guidance both draw on this same conviction concept, so a Florida withhold generally still counts as a conviction for both programs’ criminal bars, the same result covered for other immigration contexts in Withhold of Adjudication in Florida and in the § 212(h) waiver article.
A dismissed charge, an acquittal, or a case resolved through pretrial diversion without a plea is different: without a guilty or no-contest plea (or an admission of facts sufficient for guilt) and an imposed penalty, it generally does not meet the federal conviction definition in the first place, so it does not by itself trigger either bar. It can still surface in a background check and generate questions that need to be answered accurately.
Renewal and continuing-eligibility risk
- DACA is reassessed at every renewal. A conviction that occurs after a grant of DACA, even one that happens between renewal cycles, is evaluated the next time a renewal request is filed. There is no grandfathering: a new significant misdemeanor conviction can end a run of prior approvals.
- TPS can be terminated over a later conviction, not just denied at initial registration. A TPS holder who is convicted of a disqualifying offense after being granted status can lose that status on that basis.
- An open, unresolved charge is not the same as a conviction under either program’s bar, but it is not risk-free either: both DACA’s public-safety discretion and USCIS’s general background-check process can flag a pending case, and a plea taken without immigration advice can convert a manageable pending charge into a disqualifying conviction.
- A probation-only sentence is not the same as 90 or more days of confinement, which matters for the “any other misdemeanor” DACA category. Whether a specific sentence crosses that line depends on exactly what the plea colloquy and sentencing order say, not on how the plea was described at the time.
Common mistakes to avoid
- Assuming a Florida withhold of adjudication avoids DACA or TPS’s criminal bars because no formal judgment of guilt was entered
- Treating a DUI or domestic-violence-related charge as an ordinary misdemeanor for DACA purposes, when it is a significant misdemeanor by definition regardless of the sentence
- Assuming TPS’s felony or two-or-more-misdemeanors bar can be waived the way many other TPS inadmissibility issues can be
- Accepting a plea deal without confirming how it will be described for immigration purposes, since a state-court label (“withhold,” “adjudication deferred,” “diversion”) does not control how USCIS analyzes it
- Waiting until a renewal filing to disclose a new conviction, rather than getting an immigration consultation as soon as a new charge is filed
Frequently asked questions
Does a DUI automatically disqualify someone from DACA?
Generally, yes. A DUI conviction is defined as a “significant misdemeanor” under DACA guidance, which disqualifies on its own regardless of the sentence the court actually imposed, unlike an ordinary misdemeanor that only disqualifies with 90 or more days of actual jail time.
Can someone lose TPS over a single misdemeanor conviction?
A single misdemeanor conviction does not, by itself, trigger TPS’s specific conviction bar, which requires either a felony or two or more misdemeanors. A single misdemeanor can still create other problems, including questions about the separate inadmissibility grounds TPS otherwise requires an applicant to clear.
Does a Florida withhold of adjudication count as a conviction for DACA or TPS?
Generally, yes, when the person pleaded guilty or no contest, or the facts were sufficient for a finding of guilt, and the court imposed probation or another penalty. Federal immigration law’s conviction definition does not depend on Florida’s formal adjudication label.
Is there a waiver for TPS’s felony or two-misdemeanors bar?
No. TPS has a broad discretionary waiver for many separate inadmissibility grounds, but it does not reach the felony or two-or-more-misdemeanors conviction bar, which is a distinct statutory requirement.
If a DACA recipient is arrested but the charge is later dismissed, does that affect their status?
A dismissed charge without a guilty or no-contest plea generally does not meet the federal conviction definition and does not by itself trigger DACA’s conviction-based bars. USCIS’s public-safety discretion and background-check review can still consider the underlying facts, and the case should still be disclosed accurately on any renewal request.
Should a DACA or TPS holder accept a plea deal without talking to an immigration attorney first?
No. A plea that looks favorable in Florida criminal court, including a withhold of adjudication, can still meet the federal conviction definition and trigger a significant-misdemeanor, two-misdemeanor, or felony bar under DACA or TPS. Immigration consequences should be evaluated before any plea is entered, not after.
What this means for your case
DACA and TPS use narrower, more specific criminal-history rules than most people expect, and a Florida charge that resolves favorably in state court, including a withhold of adjudication or a probation-only sentence, can still be disqualifying under either program’s own test. Because both programs reassess criminal history on an ongoing basis rather than only at the initial application, a new charge is a reason to get immigration advice immediately, not a reason to wait and see how the state case turns out.
Contact MK Law to discuss how a Florida arrest, charge, or conviction may affect DACA or TPS status. Our immigration practice works alongside our criminal defense practice because a single plea decision can affect both cases at once. Do not include confidential or time-sensitive information in an online contact form. Contact us directly to discuss your situation; sending a message does not by itself create an attorney-client relationship.