The Obama Administration announced on June 15, 2012 that
certain undocumented aliens would be eligible for deferred
action and receive work authorization for up to two years.
Among those eligible are certain young people who were
brought to the United States through no fault of their own
as young children and meet several key criteria. Those who
demonstrate that they meet the criteria will be eligible to
receive deferred action and work authorization
for a period two years, subject to renewal.
WHO IS ELIGIBLE TO RECEIVE DEFERRED ACTION?
In order to be eligible for deferred action, individuals must:
- Have come to the U.S. under the age of sixteen;
- Have continuously resided in the U.S. since June 15, 2007
and have been present in the U.S. on June 15, 2012; - Currently be in school, have graduated from high school,
have obtained a general education development (GED)
certificate, or are honorably discharged veterans of the
Coast Guard or Armed Forces of the U.S.; - Have not been convicted of a felony offense, a significant
misdemeanor offense, multiple misdemeanor offenses, or
otherwise pose a threat to national security or public safety; - Not be above the age of thirty.
WHAT IS DEFERRED ACTION?
Deferred action is a discretionary determination that the
removal or deportation of an individual from the U.S. should
be deferred or delayed as an act of prosecutorial discretion.
Deferred action does not confer lawful status upon an
individual, nor will it lead to a green card. However, an alien
grated deferred action will not be considered to be accruing
unlawful presence in the U.S. during the period deferred
action is in effect. Under existing regulations, an individual
who has been granted deferred action is eligible to receive
employment authorization for the period of deferred action,
provided he or she can demonstrate” an economic necessity
for employment.” Deferred action can be terminated at any
time at the agency’s discretion or renewed by the USCIS.
DOES THIS POLICY APPLY TO THOSE WHO ARE
SUBJECT TO A FINAL ORDER OF REMOVAL?
Yes. An individual subject to a final order of removal who can
demonstrate that he or she meets the above eligibility criteria
can request a review of his or her case and receive deferred
action for a period of two years, subject to renewal.
WILL INDIVIDUALS BE SUBJECT TO BACKGROUND
CHECKS BEFORE THEY CAN RECEIVE AN EXERCISE OF
PROSECUTORIAL DISCRETION?
Yes. All individuals will undergo biographic and biometric
background checks prior to receiving an exercise of
prosecutorial discretion. Background checks involve checking
biographic and biometric information provided by the
individuals against a variety of databases maintained by DHS
and other federal government agencies. Individuals who
have been convicted of any felony, a significant misdemeanor
offense, three or more misdemeanor offenses not occurring
on the same date and not arising out of the same act,
omission, or scheme of misconduct, or otherwise pose a
threat to national security or public safety are not eligible to
be considered for deferred action under the new process.
WILL DEPENDENTS AND OTHER IMMEDIATE
RELATIVES OF INDIVIDUALS WHO RECEIVE DEFERRED
ACTION PURSUANT TO THIS PROCESS ALSO BE
ELIGIBLE TO RECEIVE DEFERRED ACTION?
No. The new process is available only to those who satisfy
the eligibility criteria. As a result, the immediate relatives,
including dependents, of individuals who receive deferred
action pursuant to this process are not eligible to apply
for deferred action as part of this process unless they
independently satisfy the eligibility criteria.
WHY ISN’T DHS ALLOWING OTHER INDIVIDUALS TO
REQUEST DEFERRED ACTION UNDER THIS PROCESS?
As a general matter, young people who, through no fault of
their own, were brought to this country as children, lacked the
intent to violate the law and our ongoing review of pending
removal cases is already offering administrative closure to
many of them. However, additional measures are necessary to
ensure that our enforcement resources are not expended on
these low priority cases but are instead appropriately focused
on people who meet our enforcement priorities.
HOW WILL THE NEW DIRECTIVE BE IMPLEMENTED?
Individuals who are not in removal proceedings or who
are subject to a final order of removal will need to submit a
request for a review of their case and supporting evidence
to U.S. Citizenship and Immigration Services (USCIS).
Individuals may request deferred action if they meet the
eligibility criteria.
CAN I APPLY NOW?
For individuals who are in removal proceedings before the
Executive Office for Immigration Review, ICE will, in the
coming weeks, announce the process by which qualified
individuals may request a review of their case. All others must
wait until USCIS announced the procedures to be followed
while applying for this benefit. Further guidance is expected
sometime in August of 2012. In the meantime individuals
may call the USCIS hotline at 1-800-375-5283, from 8 a.m.
to 8 p.m. Individuals seeking more information on the new
process should visit USCIS’s website (at www.uscis.gov) or
consult a qualified immigration attorney.
BEWARE OF NOTARIOS AND THOSE NOT AUTHORIZED
TO PRACTICE LAW.
Unfortunately, this policy may open the door for fraud and
deception by so-called “notarios.” In the U.S. notarios have
no legal authority and cannot practice law or represent
individuals. An immigrant’s case can be delayed by
notarios acting in bad faith, resulting in penalties and even
deportation. There is nothing more dangerous than applying
for a benefit that you are not eligible for. Unfortunately, many
unscrupulous individuals prey on the immigrant communities
desire to obtain a benefit and submit applications regardless of
eligibility. Be careful. Do not endanger your chance to qualify
for this or some other benefit. Make sure you consult with a
qualified immigration attorney for more information before
applying for deferred action.
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