Certain Young People Will Qualify for Deferred Action and Work Authorization

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On Friday, June 15, 2012, the Secretary of Homeland Security, Janet Napolitano, made a very important announcement

– that certain young people who were brought to the U.S. through no fault of their own as children and who meet certain criteria will be considered for relief from removal called “deferred action” for a period of two years that will be renewable. 

This is a very important development, because it will bring some peace of mind to those young people in our communities between the ages of 15 and 30 who otherwise worry about their status and fear the threat of getting deported.  It is also extremely important, because it will allow these young people to apply for a work authorization card and with that card to obtain a Social Security Number and a driver’s license.  It has been estimated that this policy may affect around one million people (Center for American Progress www.americanprogress.org). 

“Deferred action” is a discretionary decision by the Department of Homeland Security not to remove (or deport) an individual.  It does not grant any lawful immigration status, and it does not waive or forgive any prior periods of unlawful presence in the U.S.  A person who is granted deferred action is not placed on any path to obtain lawful permanent residency or citizenship.  The fact that it is “discretionary” means that the Department of Homeland Security will be entitled to decide whether a person qualifies or not.

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Those who will first benefit from this policy will be those who are in removal proceedings, because their cases will be reviewed by Immigration and Customs Enforcement (ICE) to determine if they qualify for the deferred action.  Those who are not yet in removal proceedings will be able to apply affirmatively, but will have to wait until the USCIS develops the procedure by which a person can apply.  During a Stakeholder Conference Call held on June 18, 2012, with Alejandro Mayorkas, Director of USCIS, one caller asked the question whether there would be a form and a fee for young people to apply for this benefit.  The answer was that USCIS has not yet determined the form or fee or the procedure for people to apply.  USCIS will be developing the details of the process within the next 60 days. 

While this is very good news to many people, it is important that people understand all of the criteria that need to be met to qualify for this benefit.  It is also important for people to realize that there are some risks involved.

What Are the Eligibility Criteria?

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A person must meet all of the following criteria to be eligible:

1.            Must be at least 15 years old when applying for deferred action

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2.            Must have entered the U.S. when the person was under the age of 16

3.            Has been present in the U.S. for 5 years or more as of June 15, 2012

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4.            Must have been present in the U.S. as of June 15, 2012

5.            Is currently in school, has graduated from high school, has obtained a GED certificate, or has been honorably discharged from the Coast Guard or the U.S. Armed Forces

6.            Has not been convicted of a felony offense, a “significant misdemeanor” offense, multiple misdemeanor offenses, and does not pose a threat to national security or public safety

7.            Is not over the age of 30 on June 15, 2012

People who meet all of these criteria are eligible to apply for the deferred action, but the Department of Homeland Security has stated that “DHS cannot provide any assurance that relief will be granted in all cases.”  People applying for deferred action will have to pass a biometric and biographic background check, and their requests will be decided “on a case by case basis.”

How Can a Person Apply for this New Deferred Action?

The USCIS will be developing the procedure by which young people can apply for this new deferred action and for employment authorization within the next 60 days.  We can expect that at minimum a person will have to complete an application form and a biometric form, pay a fee, and submit sufficient evidence to prove that he or she meets all of the eligibility criteria.  We can expect that an applicant will be required to submit a copy of his or her birth certificate and an English translation.

We can expect that after the application is submitted, the person will then be scheduled for an appointment at an Application Support Center for fingerprinting and that a full background check will be conducted by USCIS.

In order to prove a person arrived in the U.S. before the age of 16, that he or she was present on June 15, 2012, and that he or she has resided in the U.S. for at least five years before June 15, 2012, he or she can submit the following documents:

  • Financial records
  • Medical records
  • School records
  • Employment records
  • Military records

Additional evidence will be required if a person is trying to qualify based on having received a GED certificate or having been honorably discharged from the Coast Guard or the U.S. Armed Forces.

USCIS has stated that it is taking steps to prevent fraud in this new process.  Director Mayorkas stated that the USCIS will separately take action if someone makes a material misrepresentation and that the USCIS intends to pursue those actions vigorously.  During the Stakeholder Conference Call, Director Mayorkas also called on stakeholders to help combat Notario fraud.

How Long Will The Deferred Action Be Granted?

 

Deferred action will be granted for a two-year period.  People will be able to apply to renew the deferred action and the work authorization every two years, but they will have to undergo a new background check.  Any offenses committed within the last two years will be analyzed and may result in a denial of the renewal.  A denial could lead to the applicant being placed in removal proceedings.

What Crimes or Offenses Will Cause a Person to Be Ineligible?

Before applying under the new policy, it will be most important for people to thoroughly analyze their own background to determine if they have pled guilty or have been found guilty of any crimes or offenses that would cause them to be ineligible. 

Individuals who have been convicted of any of the following will not be eligible under the new policy:

  • A Felony Offense
  • A “Significant Misdemeanor Offense”
  • 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

A felony is defined as a federal, state, or local criminal offense punishable by imprisonment for a term of more than one year (which means 366 days or more).

Although we expect that more guidance will be issued by USCIS about what is a “significant misdemeanor”, the USCIS’ website, (www.uscis.gov) defines it as 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 the following:

  • Domestic violence
  • Sexual abuse or exploitation
  • Burglary, larceny, or fraud
  • Driving under the influence (DUI) 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
  • Unlawful possession of drugs

This list of crimes seems to include a very broad range of misdemeanors.  During the conference call on June 18, 2012, John Morton, Director of ICE, seemed to say that anything considered by federal, state, or local law as a misdemeanor could cause a person to be denied under the new policy.  These may include misdemeanors normally considered to be very minor, such as driving without a license, disorderly conduct, trespassing, and loitering. 

Many of these crimes are not crimes that would normally make a person inadmissible.  For example, simple assault is not considered a crime involving moral turpitude, and so a person applying for a green card (based on a family member or employment) would not be denied his application just because he has a conviction for simple assault.  However, under this new policy, a conviction for simple assault or other misdemeanor will cause an application to be denied.  Because of this, anyone who has even one misdemeanor should be cautious about applying and should consult with an immigration attorney before submitting an application.  We expect more guidance will be issued about this criterion.

If the Request for Deferred Action is Denied, Can It Be Appealed?

A denial of a request for deferred action under this new policy cannot be appealed.

If a Person Does Not Qualify for This New Benefit, Is There Any Hope?

Director Mayorkas stated that a person who does not qualify under this new deferred action policy and is placed in removal proceedings will be able to request relief under the existing June 2011 Prosecutorial Discretion Memoranda through Immigration and Customs Enforcement (ICE).  The June 2011 Prosecutorial Discretion Memoranda did not provide for work authorization.

Are There Risks in Applying for Deferred Action Under This New Policy?

 

There is a risk that a person who applies under this new policy might not qualify and that the application will expose the person (and maybe even his or her family) to unwanted attention from Immigration and Customs Enforcement (ICE).  During the June 18, 2012 Stakeholder Conference Call, a caller asked Director Alejandro Mayorkas whether the USCIS will place a person into removal proceedings if his application is denied.  Director Mayorkas stated that the decision about whether to place that person in removal proceedings will not be automatic but will be based on the current USCIS Policy Memorandum on the issuance of Notices to Appear (that can be found on the USCIS’ website at www.uscis.gov).  ICE Director John Morton stated that people should not turn themselves in to ICE or Customs and Border Protection (CBP).

 

Dependents and family members of a person who has been granted deferred action will not be able to apply based on their family member, but they will also be required to qualify for deferred action independently.  Some people may worry that their application will be exposing their family members to unwanted attention by USCIS or ICE.  This will likely result in many mixed families, in which one or more of the children or young adults will qualify for the protection and work authorization of this new policy, while their parents and one or more siblings will not so qualify.

In conclusion, while this new deferred action policy is very good news and will allow many people to work, drive, submit tax returns, and generally be productive members of our society, it is hoped that it will encourage Congress to work on passing Comprehensive Immigration Reform to reach many other people who also contribute positively to our society but who will not be able to benefit from this new policy.

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