Deferred Action for DREAMers

On August 3, 2012, USCIS Director Alejandro Mayorkas and other senior DHS officials held a stakeholder conference call to discuss Secretary Janet Napolitano’s June 15th Deferred Action policy memorandum.  The following are my notes from that call, regarding what USCIS is calling “deferred action for childhood arrivals” (but what is being more widely referred to as “deferred action for DREAMers”).  For more direct information on the process, an FAQ section, flyer, and a “how do I?” guide, please visit the website USCIS has created for this.

Beginning August 15, 2012 – and not until that date – USCIS will begin accepting applications from individuals wishing to be considered for deferred action under the June 15, 2012 Napolitano memo.  In order to qualify, individuals must meet the following criteria:

  1. Were under the age of 31 as of June 15, 2012;
  2. Came to the United States before their 16th birthday;
  3. Have continuously resided in the United States since June 15, 2007, up to the present time;
  4. Were physically present in the United States on June 15, 2012, and at the time of making their request;
  5. Entered without inspection before June 15, 2012, or had their lawful immigration status expire before June 15, 2012;
  6. Are currently in school, or (at the time of filing) have graduated or obtained a certificate of completion from high school, have obtained a general education development (GED) certificate, or are an honorably discharged veteran of the Coast Guard or Armed Forces of the United States; and
  7. Have not been convicted of a felony, significant misdemeanor, or three or more other misdemeanors, and do not otherwise pose a threat to national security or public safety.

Process: Beginning August 15, 2012, requests for consideration can be submitted to USCIS using a new form (that will be available on the USCIS website) and a second form to request an Employment Authorization Document (“EAD”).  The total USCIS fees for the application (including work authorization) will be $465.00.  There is NO premium or expedited processing, there is NO fee for forms or information, you will be able to track applications online.  (please do not let yourself become a victim of immigration fraud!!  For more information on protecting yourself, visit the USCIS or AILA pages on the issue.)  The applications will be mailed to a lockbox address and reviewed at all four USCIS Service Centers.  After receipt of the application a biometrics appointment will be scheduled and a thorough background check will be done.  It will be possible to apply for “advanced parole” using Form I-131 (and paying the $360 fee), but only AFTER deferred action has been granted (not concurrently with the application for deferred action).  Advanced parole will generally be granted only in cases where travel is necessary for educational, employment, or humanitarian reasons.

The forms and filing address will be available on the USCIS website on August 15, 2012.

There will not be a fee waiver available, however, certain individuals under the age of 18 with incomes below 150% of the federal poverty line (such as those who are homeless or in foster care, are unable to care for themselves due to disability, or have accumulated more than $25,000 due to medical care in the last 12 months) will be able to request a fee exemption.  This request would have to be made prior to filing a request for deferred action.

An interview will not be required except in exceptional cases.  All applicants as of August 15, 2012 must go through USCIS except those who are detained – persons in custody should continue to request deferred action through ICE.  There will be no appeal or review of deferred action denials – motions to reopen or reconsider will not be available (it was not said, however, that subsequent applications would be barred by a denial).

Clarifications: The call reviewed documentary requirements, general criminal ineligibility issues, and other general matters explained on the USCIS “deferred action” page.  I highlight the following clarifications because I have received questions regarding these particular issues:

a. Applicants cannot have been 31 or older on June 15, 2012.

b. A “brief, casual and innocent absence” from the US before August 15, 2012 will not interrupt physical presence, but it will disqualify an applicant if it took place after August 15, 2012.

c. Information provided in the application is protected from disclosure to ICE and CBP for the purpose of enforcement proceedings unless the applicant meets the criteria for issuance of a Notice To Appear under the USCIS guidelines already in place.

Individuals who are approved for deferred action will not be referred to ICE, however, information provided may be shared with law enforcement and ICE and CBP for purposes other than removal (national security, investigation/prosecution of criminal offenses, fraud detection, etc.) – this also applies to family of applicants.  This policy is subject to change and does not create any rights or obligations.

If a person makes misrepresentations or omits significant facts they will be treated as a priority for enforcement and removal – they will go after people who lie to obtain deferred action.

d. Persons who obtain a GED of high school diploma after June 15, 2012 will still be eligible to file, but they must have obtained it before the time when they file.

e. There will be a renewal fee.

f. Persons who have other pending applications with USCIS will be eligible for deferred action, but only until any such application is approved.

g. The criminal grounds of ineligibility continue to be i) any felony (any crime punishable by more than one year in jail), ii) a significant misdemeanor (any conviction for domestic violence; sexual abuse or exploitation; burglary; unlawful possession or use of a firearm; drug distribution or trafficking; or, driving under the influence; or any other misdemeanor resulting in actual incarceration for over 90 days), or iii) three or more misdemeanors.   The definition of “significant misdemeanor” has changed slightly so as not to exclude people with convictions for certain “minor crimes”.

h. Minor traffic offenses such as driving without a license will not be considered misdemeanors but multiple such offenses may be viewed together to warrant a denial of prosecutorial discretion.

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