Deferred action almost a dream act

Deferred Action – Almost a “DREAM” (Act)

Come True

© 2012 Wolfsdorf Immigration Law Group (all rights reserved) . The contents of this document are proprietary and should not be duplicated or shared without the express permission from Wolfsdorf Immigration Law Group.

Santa Monica Office

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Santa Monica, CA 90401

(310) 570-4088

New York Office

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New York, NY 10022

212-899-5040

www.wolfsdorf.com

800-VISA-LAW

visalaw@wolfsdorf.com

Presenters:

What is Deferred

Action?

Deferred action is a discretionary

determination to defer removal action

of an individual as an act of

prosecutorial discretion.

Deferred action does not confer

lawful status upon an individual.

An alien granted deferred action will

not be considered to be accruing

unlawful presence in the United

States during the period deferred

action is in effect

Deferred action does not absolve

individuals of any previous or

subsequent periods of unlawful

presence.

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

agency.

Who qualifies for

Deferred Action?

1. Be under the

age of thirty-one

as of June 15,

2012.

Pursuant to the Secretary’s June 15, 2012 memorandum,

in order to be eligible for deferred action, individuals must:

2. Have come

to the United

States under

the age of

sixteen.

If you have never been in

removal proceedings, or your

proceedings have been

terminated before your

request for consideration of

deferred action for childhood

arrivals, you must be at least

15 of age or older at the time

of filing and meet the other

guidelines.

If you are in removal proceedings, have a final

removal order, or have a voluntary departure order,

and are not in immigration detention, you can

request consideration of deferred action for

childhood arrivals even if you are under the age of

15 at the time of filing and meet the other

guidelines.

In all instances, you cannot be the

age of 31 or older as of June 15,

2012 to be considered for deferred

action for childhood arrivals.

(But no age-outs!)

3. Have continuously resided in the

United States since June 15, 2007.

A brief, casual, and innocent absence from the United States

will not interrupt your continuous residence. If you were

absent from the United States for any period of time, your

absence will be considered brief, casual, and innocent, if it

was before August 15, 2012, and:

a. The absence was short and reasonably calculated to

accomplish the purpose for the absence;

b. The absence was not because of an order of exclusion,

deportation, or removal;

c. The absence was not because of an order of voluntary

departure, or an administrative grant of voluntary departure

before you were placed in exclusion, deportation, or removal

proceedings; and

d. The purpose of the absence and/or your actions while

outside the United States were not contrary to law.

4. Be physically present in the United

States on June 15, 2012, and at the time of

making your request for consideration of

deferred action with USCIS.

5. Have entered

without

inspection before

June 15, 2012, or

your lawful

immigration

status expired as

of June 15, 2012.

6. Be currently 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.

To be considered “currently in

school” under the guidelines,

you must be enrolled in school

on the date you submit a

request for consideration of

deferred action under this

process.

7. Have not been

convicted of a felony, a

significant

misdemeanor,

three or more other

misdemeanors, and

do not otherwise pose

a threat to national

security or public

safety.

☛A felony is a federal, state, or local

criminal offense punishable by

imprisonment for a term exceeding

one year.

☛A significant misdemeanor is a

misdemeanor as defined by federal

law (specifically, one for which the

maximum term of imprisonment

authorized is one year or less but

greater than five days) and that meets

the following criteria:

Regardless of the sentence imposed, is an

offense of:

(i)domestic violence;

(ii)sexual abuse or exploitation;

(iii)burglary;

(iv)unlawful possession or use of a firearm;

(v)drug distribution or trafficking; or,

(vi)driving under the influence;

OR

If not an offense listed above, is one for

which the individual was sentenced to time

in custody of more than 90 days.

The sentence must involve time to be served

in custody, and therefore does not include a

suspended sentence/ICE hold.

☛ a non-significant misdemeanor is any

misdemeanor as defined by federal law

(specifically, one for which the maximum term of

imprisonment authorized is one year or less but

greater than five days) and that meets the

following criteria:

Is not an offense of domestic violence; sexual

abuse or exploitation; burglary; unlawful

possession or use of a firearm; drug

distribution or trafficking; or, driving under the

influence; and

Is one for which the individual was sentenced

to time in custody of 90 days or less.

What qualifies as a national security or public safety

threat?

Indicators that you pose such a threat include, but are not limited

to, gang membership, participation in criminal activities, or

participation in activities that threaten the United States.

The application process

1. Submit your request for

consideration of deferred action to

USCIS (Form I-821D); AND

2. Submit a form requesting an

employment authorization document

(Forms I-765/I-765WS).

3. Submit the

government filing

fee in the amount of

$465.

(There are VERY LIMITED fee waivers available for employment

authorization applications connected to the deferred action for

childhood arrivals process).

4. Undergo biographic and

biometric background checks

Statistics:

☛ You cannot file a motion to reopen

or reconsider, and cannot appeal the

decision if USCIS denies your request

for consideration of deferred action for

childhood arrivals. Maybe refile?

☛ Unless the program has been

terminated, you may request

consideration for an extension of that

period of deferred action.

☛ You must also request an extension of

your employment authorization.

Very limited fee exemption:

•Must be filed and approved before file

application for deferred action

•Must submit a letter/supporting docs showing:

• Under 18, homeless, in foster care or

otherwise lacking parental/familial

support and income is less than 150%

of U.S. poverty line

• Cannot care for yourself due to serious,

chronic disability AND income less than

150% of U.S. poverty level.

• You have, at time of request,

accumulated $25,000 + in debt over

past 12 months as a result of

unreimbursed medical expenses for

you or an immediate family member

AND your income less than 150% of

U.S. poverty level

Dependents (parents/spouse, etc.)

•Process is only available for those who qualify

in their own right.

•Immediate relatives may not be considered as

part of application unless they independently

satisfy the guidelines

Evidence

To prove entry before the age of 16?

1. Financial records

2. Medical records

3. School records

4. Employment records

5. Military records

Residence in the United States for a least five years

preceding June 15, 2012?

1. Financial records

2. Medical records

3. School records

4. Employment records

5. Military records

Physical presence in the United States as of June 15,

2012?

1. Financial records

2. Medical records

3. School records

4. Employment records

5. Military records

1. Diplomas

2. GED certificates

3. Report cards

4. School transcripts

Enrollment in school / graduation from high school /

general education development certificate (GED)?

Honorable discharge from the Coast Guard or Armed

Forces of the United States?

1. Report of separation forms

2. Military personnel record

3. Military health records

What can

affidavits prove?

Affidavits may only be used if the documentary evidence

available to you is insufficient or lacking:

1. A gap in the documentation demonstrating that you meet the

five year continuous residence requirement; and

2. A shortcoming in documentation with respect to the brief,

casual and innocent departures during the five years of required

continuous presence.

Submit two or more affidavits, sworn to or affirmed by people other than

yourself, who have direct personal knowledge of the events and circumstances.

Cases in other

Immigration Processes:

If you are currently in immigration

detention...

•Identify yourself to your detention

officer; or

•Contact the ICE Office of the Public

Advocate at 1-888-351-4024 (M-F 9-5pm)

or via email at

EROPublicAdvocate@ice.dhs.gov

If you are about to be removed by ICE…

•Immediately contact either the Law

Enforcement Support Center’s hotline at 1-

855-448-6903 (staffed 24/7); or

•Contact the ICE Office of the Public Advocate

at 1-888-351-4024 (M-F 9-5pm) or via email at

EROPublicAdvocate@ice.dhs.gov

If you have an application for

asylum/cancellation of removal pending

before USCIS/EOIR on June 15, 2012 (and no

status)….

•May request deferred action if qualify based

on eligibility criteria

If you have a final removal order or a voluntary

departure order….

•May request deferred action if qualify based

on eligibility criteria

Potential pitfalls and

issues for Deferred

Action applicant

1. Potentially severe consequences:

If USCIS denies your application, USCIS will

apply its policy guidance governing the referral

of cases to U.S. Immigration and Customs

Enforcement (ICE) and the issuance of Notices

to Appear (NTA).

www.uscis.gov/NTA

If your case does not involve a criminal

offense, fraud, or a threat to national security

or public safety, your case should not be

referred to ICE for purposes of removal

proceedings except where DHS determines

there are exceptional circumstances.

2. Can be rescinded at any time:

This policy was enacted by the Democratic

Executive Branch. This is not a law and

therefore if a new president takes office it can

be lifted quite easily, as it does not need to be

repealed.

Gov. Romney’s staff clarified on October 2nd that

he would only honor grants already made by

DHS before the date he would take the oath of

office, January 20, 2013.

3. Issues around travel abroad:

After August 15, 2012, if you travel outside of the

United States, you will not be considered for deferred

action under this process. If USCIS defers action in

your case, you will be permitted to travel outside of the

United States only if you apply for and receive advance

parole (travel authorization) from USCIS.

Note: If you are in unlawful status and/or are currently in removal proceedings,

and you leave the United States without a grant of advance parole, you will be

deemed to have removed yourself and will be subject to any applicable grounds of

inadmissibility if you seek to return.

Advance Parole:

•Can ONLY apply once approved for Deferred

Action

•File Application for travel document

•Pay $360 filing fee

•Case-by-case basis – humanitarian,

educational or employment purposes

4. Criminal Convictions

Driving under the influence is a significant

misdemeanor regardless of the sentence

imposed. Expungement?

5. Discrimination?

Anti-discrimination provision of the INA provides that employers may not

discriminate in the hiring process on the basis of an applicant's citizenship status in

the case of a "protected individual," defined to include citizens and nationals of the

United States, certain lawful permanent residents, refugees and asylees.

Beneficiaries of the DACA program do not have a citizenship status that falls within

the definition of a "protected individual," and therefore are not protected from

citizenship status discrimination under the anti-discrimination provision.

But - all individuals with employment authorization, including those falling

outside the definition of a "protected individual," are protected from national

origin discrimination and from document abuse

Employers may not use the "temporary nature“ of an individual's

employment authorization as a pretext for discrimination on the basis of

national origin.

6. Issues for employers?

•DACA applicant asks for employment verification

letter = constructive notice

•Honesty Policy? (Must be applied uniformly or

else discrimination?

•Letter from employer = potential I-9 audit? Updated USCIS DACA FAQ – 09/14/2012 – on issue of employment letters to DACA applicants:

You may, as you determine appropriate, provide individuals requesting deferred

action for childhood arrivals with documentation which verifies their employment.

This information will not be shared with ICE for civil immigration enforcement

purposes pursuant to INA section 274A unless there is evidence of egregious

violations of criminal statutes or widespread abuses.

QUESTIONS???

Santa Monica Office

1416 2nd Street

Santa Monica, CA 90401

(310) 570-4088

New York Office

641 Lexington Ave, 15th Floor

New York, NY 10022

212-899-5040

www.wolfsdorf.com

800-VISA-LAW

visalaw@wolfsdorf.com

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