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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
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
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
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
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
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