TPS, DACA and a criminal plea
Temporary Protected Status ends on a conviction of any felony or of two or more misdemeanors committed in the United States, and on any conviction that makes you inadmissible under the criminal grounds, which cannot be waived for TPS except a single small marijuana offense. The DACA regulation bars a felony, a listed misdemeanor, or three or more other misdemeanors. Both programs count pleas by the maximum punishment for the offense, not by what the state calls it, and both are re-examined each time the status is renewed. The count is what the plea negotiation is about.
Current as of October 2026. We re-check this page regularly and after any rule change.
Both of these programs have a numbered criminal test. TPS counts felonies and misdemeanors and adds the inadmissibility grounds on top. DACA counts felonies, significant misdemeanors and other misdemeanors. Neither count uses the categories the rest of this site is built on, so a plea can be outside every ground of removal and still end the status, and a plea can be a ground of removal and still leave the count untouched. This page is the two tests, how the dispositions in New York, New Jersey and Florida map onto them, and how a sentence changes the answer. The categories that apply to everyone are on the crimes and removal page, and what to negotiate for is on the plea strategy pages.
TPS: any felony, two misdemeanors, or the inadmissibility grounds
A person is not eligible for TPS if convicted of any felony or of two or more misdemeanors committed in the United States, or if inadmissible under the criminal grounds of INA 212(a)(2), which other than the 30-gram marijuana offense cannot be waived for TPS. INA 244(c)(2)(A)(iii), (B)(i). The definitions are in the regulation: a felony is a crime punishable by imprisonment for more than one year, and a misdemeanor is a crime punishable by one year or less, with a crime whose maximum is five days or less not counted. 8 C.F.R. 244.1. Two things follow. The count turns on the statutory maximum, not the sentence. And the state's label does not control; New Jersey has no felonies or misdemeanors at all, and its offenses are sorted by their maximum terms.
| Disposition | Maximum term | TPS count | Authority for the maximum |
|---|---|---|---|
| New York class A misdemeanor | 364 days | Misdemeanor | N.Y. Penal Law 70.15(1) |
| New York class B misdemeanor | 3 months | Misdemeanor | N.Y. Penal Law 70.15(2) |
| New York violation | 15 days | More than five days, so not excluded by the floor; whether an offense the state does not call a crime is a "crime" under 244.1 is not something we can answer in general. Treat it as a possible count | N.Y. Penal Law 10.00(3); 70.15(4) |
| New York class E felony and above | 4 years and up | Felony | N.Y. Penal Law 70.00(2) |
| New Jersey petty disorderly persons offense | 30 days | Misdemeanor | N.J.S.A. 2C:43-8 |
| New Jersey disorderly persons offense | 6 months | Misdemeanor | N.J.S.A. 2C:43-8 |
| New Jersey fourth-degree crime | 18 months | Felony, though New Jersey never uses the word | N.J.S.A. 2C:43-6(a) |
| Florida second-degree misdemeanor | 60 days | Misdemeanor | Fla. Stat. 775.082(4) |
| Florida first-degree misdemeanor | 1 year | Misdemeanor; one year is not more than one year | Fla. Stat. 775.082(4) |
| Florida third-degree felony | 5 years | Felony | Fla. Stat. 775.082(3) |
| Federal class A misdemeanor | 1 year | Misdemeanor | 18 U.S.C. 3559(a) |
| Federal felony | More than 1 year | Felony | 18 U.S.C. 3559(a) |
The inadmissibility grounds are the second test, and they cannot be waived for TPS
A single misdemeanor leaves the count at one, but if it is a crime involving moral turpitude outside the petty offense exception, or any controlled-substance offense other than a single possession of 30 grams or less of marijuana, it makes you inadmissible under INA 212(a)(2), and TPS has no waiver for that. The petty offense exception is part of the ground itself: a single CIMT with a maximum possible penalty of one year or less and a sentence imposed of six months or less, counting any suspended part, is not a 212(a)(2) offense. INA 212(a)(2)(A)(ii)(II). So for TPS, a first misdemeanor CIMT plea has to be kept inside that exception, and a drug plea has to be the small marijuana offense or nothing. The petty offense page and the drug offenses page go through both.
What counts as a conviction for these counts
The immigration definition applies. Under INA 101(a)(48)(A), a conviction is a formal judgment of guilt, or, where adjudication has been withheld, a plea of guilty or no contest or an admission of sufficient facts plus some punishment, penalty or restraint the judge ordered. A Florida withhold of adjudication after a plea, with probation, is a conviction. Fla. Stat. 948.01; INA 101(a)(48)(A). A New York violation adjudicated in a criminal proceeding meets the statutory test on its face, though no reported decision squarely holds it, so it is treated as a conviction risk. A New Jersey disorderly persons offense, prosecuted in a criminal proceeding, is a conviction under the same test. A New York youthful offender adjudication is not. Matter of Devison-Charles, 22 I&N Dec. 1362 (BIA 2000). A later expungement under a rehabilitative statute does not remove a conviction from the count. Matter of Roldan-Santoyo, 22 I&N Dec. 512 (BIA 1999). The conviction page has the full list.
Under INA 101(a)(48)(B), a sentence includes any suspended portion for every rule on this site that turns on the sentence imposed. How the DACA regulation's own custody language treats a suspended sentence is addressed below.
DACA: a felony, a significant misdemeanor, or three misdemeanors
The DACA regulation makes a person ineligible who has been convicted of a felony, a listed misdemeanor, or three or more other misdemeanors not occurring on the same date and not arising out of the same act. The listed misdemeanors, which the 2012 memo called "significant misdemeanors" (the regulation does not use the phrase), include driving under the influence, domestic violence, sexual abuse or exploitation, burglary, unlawful possession or use of a firearm, drug distribution or trafficking, and any other misdemeanor for which the sentence was more than 90 days in custody. 8 C.F.R. 236.22(b)(6)(i)-(ii). The current status of the program is in litigation under Texas v. United States. Check the USCIS DACA page for whether initial requests and renewals are being processed before relying on this section.
| Criterion | What it takes | How the plea can change it |
|---|---|---|
| A felony | One conviction | A plea to a misdemeanor rather than a felony, where the facts allow it. Ask us how the regulation defines a felony; the TPS definition above is not automatically the DACA one |
| A significant misdemeanor, listed offense | One conviction of DUI, domestic violence, sexual abuse or exploitation, burglary, unlawful weapons possession or use, or drug distribution or trafficking, regardless of sentence | Only a plea to an offense outside the listed categories. The sentence does not help |
| A significant misdemeanor, sentence-based | Any other misdemeanor with a sentence of more than 90 days in custody | A sentence of 90 days or less. Whether a suspended sentence counts as custody under this rule is a question to ask us; the safer course is to assume it might and negotiate the number on the paper, not the number served |
| Three or more other misdemeanors | Three convictions, not on the same date and not arising from the same act | Consolidating charges from one incident into one plea, and keeping each disposition under the sentence line |
How 364 days and a violation-level plea interact with the counts
A sentence of 364 days rather than one year keeps a theft or a crime of violence off the aggravated felony list, and that matters for everyone. It does nothing for these counts. For TPS, the offense is still a misdemeanor because the maximum has not changed, and two misdemeanors end TPS however short the sentences were. For DACA, 364 days is more than 90 days in custody, so the misdemeanor becomes a significant misdemeanor on its own. A violation-level disposition in New York, up to 15 days, is below the DACA custody line and is not a listed misdemeanor category, but it is more than five days for the TPS floor and meets the statutory conviction test on its face, so it may still count toward the TPS two-misdemeanor total. Ask for the disposition that is lowest on every scale, not just the one that avoids the ground of removal.
Renewals, and what to ask for
The criteria above are eligibility criteria, and they are applied whenever the status is granted. Whether re-registration or renewal has a separate rule is a question for us, but a conviction entered between one grant and the next is on the record at the next filing and is counted then. A person whose first misdemeanor was counted at the last renewal has a count of one going into the criminal case, and a second misdemeanor plea makes it two.
Beyond the counts, both groups are also on the ordinary lists. Whether a TPS or DACA holder is on the deportability list or the inadmissibility list for the conviction itself depends on whether there was an admission, which is a question of your entry and status history that we would need to go through with you. Either way, the same conviction is tested for admissibility at any later application for a green card, INA 245(a)(2), with no marijuana exception on the drug ground and the 212(h) waiver reaching only some grounds. And the same conviction can be an aggravated felony, a CIMT or a drug offense with all the consequences described on the rest of this site, including mandatory detention under INA 236(c)(1). The visa holder page sets out both lists.
So the questions for the criminal lawyer are, in order: is there a plea that is not a felony under the maximum-term definition; is it the first misdemeanor or the second; is the offense a CIMT, and if so can the maximum and the sentence be kept inside the petty offense exception; is it a drug offense at all; is it on the DACA significant-misdemeanor list; and can the sentence be kept to 90 days or less. Each has to be answered before the plea, because none of them can be changed after it. The immigration-safer pleas page goes through the alternatives.
Read next: pleas for visa holders, the petty offense exception, DUI and driving offenses, or what counts as a conviction.
Common questions
What counts as a misdemeanor for TPS?
Under 8 C.F.R. 244.1, a felony is a crime punishable by imprisonment for more than one year and a misdemeanor is a crime punishable by one year or less, with an offense whose maximum is five days or less not counted. The test is the maximum term for the offense, not the sentence you received. A New York class A misdemeanor, with a maximum of 364 days, is a misdemeanor. A New Jersey fourth-degree crime, with a maximum of 18 months, is a felony for TPS even though New Jersey does not use that word.
Does a 364-day sentence protect TPS or DACA?
Not by itself. For TPS the count turns on the maximum punishment for the offense, so a 364-day sentence on a misdemeanor leaves it a misdemeanor, and two of them end TPS. For DACA the regulation makes any misdemeanor with a sentence of more than 90 days in custody a bar on its own. A 364-day sentence protects against the one-year aggravated felony entries; it does not protect the TPS or DACA counts.
Is a first DUI a problem for DACA?
Under the DACA regulation, driving under the influence is listed among the disqualifying misdemeanors regardless of the sentence, so a single DUI conviction is a bar. For TPS, a DUI is one misdemeanor on the two-misdemeanor count, and a simple DUI is not a crime involving moral turpitude under Matter of Torres-Varela, so it does not by itself trigger the 212(a)(2) CIMT ground.
Is DACA still being granted?
The program's status has been in litigation. Check the USCIS DACA page for whether initial requests, renewals or neither are being processed before relying on anything here. The criminal criteria described on this page are the ones in the regulation as we read it.
Tell us about the charge before you take the plea. Not after.
You get a free conversation with an immigration attorney, in your language. We speak English, Russian, Spanish and Uzbek in-house, and we bring in a live interpreter for anything else. We will read the charge against the immigration statute, tell you what the offered plea does to your status and to every form of relief, and tell you what to ask your criminal lawyer to negotiate instead. If the plea has already been entered, we will tell you what can still be done.