This new program seeks to assist young people who entered the United States as children and have attended high school
Immigration Visa Attorneys (IVA) can determine if you may qualify for this program. Here are some frequently asked questions about Deferred Action for Childhood Arrivals
Who is eligible to receive deferred action under the Department’s new directive?
- You must have come to the United States under the age of sixteen;
- You must have continuously resided in the United States for at least five years
preceding June 15, 2012 and are present in the United States on June 15, 2012;
- You must currently be in school, have graduated from high school, have obtained
a general education development certificate, or are honorably discharged veterans of the
Coast Guard or Armed Forces of the United States;
- You must not have been convicted of a felony offense, a significant misdemeanor
offense, multiple misdemeanor offenses, or otherwise pose a threat to national security or
- You must also complete a background check.
- Individuals who make a request to USCIS and are not subject to a final order of removal must be 15 years old or older.
Why has Obama decided to create this work card and deportation hold program for students?
President Obama has decided to use his authority to do what Congress has been unable to do. For years and years the Dream Act has been proposed to give illegal aliens who were brought here by their parents and who cannot continue with their education a chance to pursue the American Dream. Congress has not wanted to provide another amnesty for fear of starting new waves of illegal immigrants from coming over to the U.S. So now Obama has instructed the USCIS and USICE to use an existing program called Deferred Action to provide identity documents to deserving young people.
DHS has already begun to exercise “prosecutorial discretion” to low priority cases, non-criminal aliens who have strong ties to the U.S. and allow them to receive work authorization and even closing their removal cases in some circumstances. The Dreamers are mostly individuals who were brought to this country through no fault of their
Own as children, and if they have not been convicted of a felony offense, a significant misdemeanor offense, or multiple misdemeanor offenses, and meet other key criteria, they will receive discretion to stay here in the U.S. where before they would be removed.
What is deferred action?
Deferred action has been around for a long time. It is a judgment call by USCIS or ICE to postpone the removal or deportation of an individual. Deferred action does not provide you with lawful status. Once you are granted deferred action you will not be considered to be accruing unlawful presence in the United States. However, deferred action does not forgive any previous periods of unlawful presence or prevent future unlawful presence if you are released from deferred action.
Under the present regulations, if you are granted deferred action you are eligible to receive employment authorization during the deferred action. However, you have to demonstrate “an economic necessity for employment.” This means proving a hardship to yourself and your relatives. One of the problems is that deferred action can be terminated at any time at the agency’s discretion or renewed by the agency, so there is no guarantee how long you can actually stay in deferred action.
What do I have to do first?
Once individuals can prove through “verifiable documentation” that they meet the following criteria, then they will be eligible for deferred action. If you are not currently in the United States and cannot prove that you have been physically present in the United States for a continuous period of not less than 5 years immediately preceding June 15th, 2012 you will not qualify.
Will I be in status if I receive deferred action?
Prosecutorial discretion and deferred action confers no substantive right, immigration status or pathway to citizenship. Only the Congress can confer these rights and this is a program started by President Obama.
How do I apply?
Persons not in removal proceedings or who are subject to a final order of removal will need apply to USCIS. USCIS has outlined and announced the procedures by which individuals can engage in this process.
Persons currently in removal proceedings before the Executive Office for Immigration Review (aka Immigration Court) will process the request through ICE. For some who are in removal proceedings and have already been granted prosecutorial discretion will immediately begin to receive deferred action for a period of two years.
Will persons who receive deferred action be eligible for employment authorization?
Yes. This is part of the existing regulations. Persons who receive deferred action may apply for employment authorization cards from the USCIS if they can demonstrate an “economic necessity” for their employment.
Will persons receive permanent lawful status (green cards) if they qualify? No because that is for Congress to provide through immigration reform. This directive from Obama cannot confer the right to permanent lawful status.
Why will only for two years? USCIS and USICE will require persons to check in to see if they have committed any crimes. That is why deferred action will be issued only in increments of two years. At the expiration of the two years the grant of deferred action may be renewed but may not, depending on a review of the individual case.
If a deferred action is extended, will I need to re-apply for an extension of my employment authorization?
Will this apply if I am subject to a final order of removal?
Yes, if you can demonstrate that you meet the eligibility criteria. However you will remain deportable and if you fall out of deferred action they can (and probably will ) deport you.
How long will it take USCIS or USICE to decide my request?
USCIS provides more details for the public at www.uscis.gov.
If I was either accepted or rejected for an offer of administrative closure by DHS in removal proceedings can I receive deferred action?
Yes if you demonstrate that you now are eligible for deferred action to ICE or the DHS trial attorneys.
What will I need to prove that I came to the United States before the age of 16?
This will include financial records, medical records, school records, employment records, and military records.
What will I need to prove that I have lived in the United States for a least five years up to June 15, 2012?
This will include financial records, medical records, school records, employment records, and military records.
What will I need to prove that I am currently in school, has graduated from high school, or has obtained a general education development certificate (GED)?
This will include diplomas, GED certificates, report cards, and school transcripts.
What will I need to prove that I am an honorably discharged veteran of the Coast Guard or Armed Forces of the United States?
This will include report of separation forms, military personnel records, and military health records.
If I have a conviction for a felony offense, a significant misdemeanor offense, or multiple misdemeanors can I get prosecutorial discretion under this new process?
No. If you have been convicted of a felony, a significant misdemeanor offense, or three or more other misdemeanor offenses not occurring on the same date and not arising out of the same act, omission, or scheme of misconduct you will not be eligible for deferred action.
What is a felony?
A felony is a criminal offense punishable by imprisonment for a term exceeding one year.
What is a “significant misdemeanor”?
This is not yet clear, but in the past has included criminal offenses punishable by no more than one year of imprisonment or even no imprisonment but that involves: drug distribution or trafficking; or unlawful possession of drugs.sexual abuse or exploitation; violence, threats, or assault, including domestic violence; burglary, larceny, or fraud; unlawful flight from arrest, prosecution, or the scene of an accident; driving under the influence of alcohol or drugs; obstruction of justice or bribery; unlawful possession or use of a firearm;
Can I get supervisory review of decisions by ICE and USCIS?
Yes there will be some form of supervisory review, but probably no right to appeal a decision will be acknowledged.
Will my dependents and other immediate relatives action also be eligible for deferred action?
No, they will have to qualify on their own.
If my request for deferred action is denied by USCIS will I be placed in removal proceedings?
If you have a criminal record or commit some sort of fraud in the application process you can bet you will be placed in removal proceedings. There might be some consideration to allow people who are denied to stay illegally in the U.S., but probably not likely.
What if I left during the five years preceding June 15, 2012? USCIS will usually allow brief and innocent absences undertaken for humanitarian purposes to not break the continuous residence requirement.
USCIS San Diego District Director Paul Pierre on July 24th, 2012 provided some preliminary information on the new Deferrred Action for Dreamers program and then took questions from stakeholders. Some of the information he provided is as follows:
USCIS anticipates 1.4 million applicants up from the initial estimate of 800,000;
USCIS is hiring upwards of 400 people to staff the Service Centers to handle a “landslide” of applications that will be filed;
USCIS expects to use the lock boxes – Chicago or Phoenix for the filings. Applicants will be provided with an A number. Receipt notices will probably be delayed for 60 to 90 days, rather than the usual 15-30 days because of the high volume;
The Applications will likely use a new form – I-821D – and will have no fee. However, a biometric fee will be charged. The forms will be processed at the USCIS Service Centers and then will be forwarded to Application Support Centers for biometrics and finally to District Offices for interviews;
The work authorization card will be processed on form I-765 will need to be filed with a fee. It will be approved after the I-824D is approved and the applicant will probably not have to wait an additional 90 days after the approval. They expect to issue a two year card;
There was no information on travel authorization or what will happen after the two years are finished;
USCIS indicates that temporary travel will not break the five year residence requirement.
If you have a similar situation we can help. We work with families and businesses who have cases ongoing with other firms and we simply take over the case and get it back on track. Or we can review your documents and advise you on how best to proceed. All of our work comes with the Integrity Refund and Performance Guarantee.
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