QUESTION: How do I know if I am eligible to apply for the Deferred Action Process for Young People that the President announced on Friday?

 

THE IMMIGRATION ANSWER MAN:

On June 15^th, President Obama announced he was ordering the Department of Homeland Security to not deport as many as a million young illegally present immigrants and allow them to apply for work cards.  The policy is essentially a way to implement much of the DREAM Act by a form of action called “deferred action.”

The following are answers to questions that many may have regarding this important news.

What is “deferred action”?

Deferred action is the indefinite delay of removal proceedings based on prosecutorial discretion. An individual with deferred action is not considered to be in a lawful status, but such individuals may receive employment authorization if they can demonstrate “an economic necessity for employment”, something that has traditionally not been difficult to show. Deferred action does not wipe away any prior periods of unlawful presence in the US, but a deferred individual does not accrue additional unlawful presence time during the time deferred action is in effect.

 

Who is eligible for the new benefit?

An applicant must be someone who

–        Entered the US before age 16

–        Is 15 years old or older, but not older than 30 years of age when filing an application

–        Has been in the US for at least five years before June 15, 2012

–        Is currently in school, has graduated from high school or received a GED or has been honorably discharged from the Coast Guard or Armed Forces

 

What would disqualify someone?

Aside from an applicant not being able to document that he or she meets the above criteria, those who have committed felonies, significant misdemeanors, or multiple misdemeanors are ineligible.

 

How long will deferred action be granted?

Deferred action grants will be given for two years at a time. Every two years, for as long as the program lasts, individuals can request a renewal of deferred action as well as an extension of work authorization.

 

What if I am in Removal Proceedings already?

Individuals in removal proceedings can benefit from deferred action. ICE is reviewing the cases of those who are currently in immigration proceedings to find those who are eligible for deferred action. There is no need, at this point, to make a request to have ICE review your case.

If a person is subject to a final order of removal and about to be removed, they should contact their lawyer immediately or call ICE’s Office of the Public Advocate at 888-351-4024 or EROPublicAdvocate@ice.dhs.gov. Persons who have already benefited from prosecutorial discretion can also apply for deferred action in order to pursue employment authorization.

 

What is the application process?

It is important to note that USCIS has not yet decided on the application process. Any individuals claiming to be able to currently file applications should be ignored as there is no set process yet.

We also do not know yet whether employment authorization documents will be applied for at the outset of the process or only after the deferred action has been approved. USCIS indicated in their press release that deferred action must be approved before applying for a work card, but this has been contradicted in other places. We should know the answer to this question shortly, however.

 

When can I apply?

USCIS has indicated they will begin accepting applications 60 days from the June 15^th announcement.

 

What will be the government’s fee to apply?

No announcement has been made yet on the amount of any fees.

 

Can I get a green card?

Deferred action does not in and of itself lead to the granting of a green card. However, if an applicant is otherwise eligible for a green card, being granted deferred inspection should not make that person lose that eligibility.

 

What types of law enforcement actions will disqualify an applicant?

Anyone with a conviction for a felony, a significant misdemeanor, three or more misdemeanors not occurring on the same date and not arising out of the same act, or otherwise posing a threat to national security or public safety will be barred from the program. All applicants will be subject to background checks including fingerprinting.

Felonies are criminal offenses punishable by jail time of at least one year. According to ICE,

“A significant misdemeanor is a federal, state, or local criminal offense punishable by no more than one year of imprisonment or even no imprisonment that involves: violence, threats, or assault, including domestic violence; sexual abuse or exploitation; burglary, larceny, or fraud; driving under the influence of alcohol or drugs; obstruction of justice or bribery; unlawful flight from arrest, prosecution, or the scene of an accident; unlawful possession or use of a firearm; drug distribution or trafficking; or unlawful possession of drugs.”

 

How will an individual document their age at arrival and time spent in the US continuously?

An individual can document their eligibility for deferred action by submitting documentation including but not limited to financial records, medical records, school records, employment records, military records and any other records that demonstrate the requirements are met.

 

Will beneficiaries of deferred action be able to travel outside the US?

USCIS is considering this issue and will announce the answer when it releases details on the deferred action application process in a few weeks.

 

What if I have been outside the US for short periods during the five year residency period?

USCIS will look at absences and if they consider them brief or innocent absences undertaken for humanitarian purposes, they will be excused.

 

Who can assist with filing a deferral application?

USCIS and ICE have strict rules regarding who can assist with preparing and filing applications. Only attorneys and representatives of specially approved non-profit organizations may do so. USCIS has warned the public not to work with so called “notarios” as such individuals are engaged in the unauthorized practice of law, a crime in every state. Furthermore, to the extent a notario or immigration consultant supplies false statements or documentation, law enforcement authorities may pursue criminal charges against an applicant as well as the notario/consultant. And deportation is a likely course of action in such cases.

ICE encourages everyone to report individuals who are not attorneys or an Authorized Representative who are charging to apply for deferred action. You can make a report with ICE by calling 1-866-347-2423. If you are not comfortable contacting ICE to file a report yourself, you can send me an email with as much detail about the person as you can provide and I will submit the information to ICE on your behalf without any need for you to provide your information to ICE.

If you would like assistance with this process, you can schedule a consultation with me by calling 1-800-343-4890 or 901-682-6455 or by clicking here to schedule a consulation appointment with an immigration lawyer.

See immigration attorney Ari Sauer's full bio.

Visit my blog, The Immigration Answer Man

Join The Immigration Answer Man – Ari Sauer Facebook Page.
Connect with Ari Sauer on LinkedIn.
Follow Ari Sauer on Twitter.

* This is an advertisement. Ari Sauer is an attorney with the Siskind Susser law firm. www.visalaw.com/ari.html. On this blog we answer questions as a service to our readers, but we cannot assume any liability related to reliance on anything herein, and responses to questions are not intended to establish an attorney-client relationship. Immigration laws and regulations are constantly changing and the rules stated may not apply to your situation. Readers are cautioned to schedule a consultation with an immigration lawyer before acting on anything stated in this blog. This blog is not intended to substitute for a consultation with a qualified immigration law attorney. Ari Sauer is licensed to practice law through the states of New York and New Jersey. Certification as an Immigration Specialist is not currently available in Tennessee, New York or New Jersey. Siskind Susser limits its practice strictly to immigration law, a Federal practice area, and we do not claim expertise in the laws of states other than where our attorneys are licensed.