Immigration
More on President Obama’s plan for Deferred Action for Immigrant Youth
The Obama administration announced on June 15, 2012 that it will offer relief from deportation for young immigrants who were brought to the country as minors and meet other specific requirements. The move, hailed by immigration advocates as a bold response to the broken immigration system, temporarily eliminates the possibility of deportation for youths who would qualify for relief under the DREAM Act, giving Congress the space needed to craft a bipartisan solution that gives permanent residence to qualifying young people. Below is a Q&A guide outlining basic facts on deferred action, who is eligible, and important information on process and timing.
NOTE: If you believe you are eligible for deferred action, DO NOT turn yourself in and DO NOT give money to anyone promising to get you legal status.
What is deferred action?
Deferred action means that the Department of Homeland Security (DHS) has determined that an individual is a low priority for immigration enforcement and has chosen to exercise its discretion and not deport the individual. Deferred action is a temporary relief from deportation. Deferred action is NOT amnesty or immunity. It does NOT provide a path to a green card or citizenship. It does NOT extend to any family members of the person granted deferred action.
Who will be eligible for deferred action?
People may apply for deferred action if they meet all of the requirements listed below:
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came to the U.S. under the age of 16 (you are not eligible if your age was over 16 when you entered USA);
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are under age 31 on June 15, 2012;
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have resided in the U.S. for five consecutive years as of June 15, 2012 (you are NOT eligible if you entered USA after June 15, 2007);
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are currently in school, have graduated from high school, have obtained a GED, or have been honorably discharged from the armed forces;
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have not been convicted of a felony offense, a significant misdemeanor, or more than three misdemeanors; and
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do not pose a threat to national security or public safety.
How long does deferred action last?
Deferred action will be granted for two-year increments and must be renewed every two years. Deferred action can be terminated at any time at DHS’s discretion.
Can a person who is granted deferred action work legally in the U.S.?
Individuals with deferred action will be able to apply for work authorization (based on economic need) and receive an Employment Authorization Document (EAD). There is a $380 fee to apply for an EAD. The EAD will also have to be renewed every two years.
How and when can people apply for deferred action?
Do not apply until USCIS announces the process for applications because your application will be rejected. U.S. Citizenship and Immigration Services (USCIS) will devise a plan before Aug. 14, 2012 that allows people 15 and older to affirmatively apply for both deferred action and work authorization. People with final orders of removal will also apply to USCIS.
Can eligible individuals also apply for their parents and siblings?
No.
How will the USCIS process for affirmatively obtaining deferred action work?
Details will emerge when the process is announced. We do know that individuals will have to provide documentation proving their age, when they came to the U.S., that they’ve been living in the U.S. for at least 5 years, and that they were physically present in the U.S. on June 15, 2012. They will have to prove they are currently in school, graduated from high school, have a GED, or have been honorably discharged from the military. Individuals will also undergo a background check.
Who is eligible for deferred action now?
As of June 15, 2012, immigration agents have been directed not to place individuals into removal proceedings if they meet the above criteria. Those individuals will be granted deferred action and will therefore also be eligible for work authorization.
For those already in immigration proceedings, U.S. Immigration and Customs Enforcement (ICE) has instituted a process for making determinations about deferred action immediately.
Should people who fit the criteria turn themselves into immigration?
No. Eligible individuals who are not already in deportation proceedings should not turn themselves in. They should wait for an announcement of the formal application process.
Should I pay someone to get me deferred action?
You shouldn’t listen to anyone who claims to be able to get deferred action for you. Everyone must beware of scam artists who will try to take advantage of the public.
Are individuals with a conviction for a felony offense, a significant misdemeanor offense, or multiple misdemeanors eligible for an exercise of prosecutorial discretion under this new process?
No. Individuals who have been convicted of a felony offense, 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 are not eligible to be considered for deferred action under the new process.
What offenses qualify as a felony?
A felony is a federal, state, or local criminal offense punishable by imprisonment for a term exceeding one year.
What offenses qualify as a “significant misdemeanor”?
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.
Answers to other frequently asked questions:
We do not know if people with deferred action will receive a document that states they have been granted deferred action or whether they will only receive an EAD.
We do not know if people with deferred action will be able to travel outside of the U.S. USCIS has promised to resolve that question.
We do not know if people with deferred action will be able to get a driver’s license. It will likely depend on the laws of each state which determine what documentation is acceptable to prove state residency and legal status. We do not know if people with deferred action will qualify to receive in-state tuition at colleges and universities. It will likely depend on state laws which determine what documentation is acceptable to prove state residency.
USCIS now has a hotline to answer questions about deferred action. The hotline will be available from 8 a.m. to 8 p.m. in English and in Spanish. The number is 1-800-375-5283.
Dilip Patel of Shutts & Bowen LLP, a Florida Bar board-certified expert on immigration law, can be reached at (813) 227-8178 or e-mail [email protected]