Comments, corrections and suggestions are welcome. As this has been rushed out, I consider this to be the first draft of a document that will be expanded and improved.ICE has put out a 16 page legalistic FAQ. This is not designed to be that. It is supposed to provide the average person with the information they should know so they will be able to work more productively with their immigration lawyer.
Questions and Answers on Deferred Action for DREAMers*
By Greg Siskind
Greg Siskind is an immigration lawyer with Siskind Susser (www.visalaw.com). For a consultation to determine eligibility for deferred action, please contact Siskind Susser at 901-682-6455 or by email at firstname.lastname@example.org.
On June 15th, President Obama announced he was ordering the Department of Homeland Security to not deport as many as a million young illegally present immigrants and allow them to apply for work cards. The policy is essentially a way to implement much of the DREAM Act by a form of action called “deferred action.”
The following are answers to questions that many may have regarding this important news.
What is “deferred action”?
Deferred action is the indefinite delay of removal proceedings or the implementation of an actual removal order based on prosecutorial discretion. An individual with deferred action is not considered to be in a lawful status, but such individuals may receive employment authorization if they can demonstrate “an economic necessity for employment”, something that has traditionally not been difficult to show. Deferred action does not wipe away any prior periods of unlawful presence in the US, but a deferred individual does not accrue additional unlawful presence time during the time deferred action is in effect.
Who is eligible for the new benefit?
An applicant must be someone who
- Entered before age 16
- Is 15 years old or older, but not older than 30 years of age when filing an application
- Has been in the US for at least five years before June 15, 2012
- Is currently in school, has graduated from high school or received a GED or has been honorably discharged from the Coast Guard or Armed Forces
What would disqualify someone?
Aside from an applicant not being able to document that he or she meets the above criteria, those who have committed felonies, significant misdemeanors, three or more misdemeanors of any type as well as those deemed a national security or public safety threat are ineligible.
How long will deferred action be granted?
Deferred action grants will be conferred for two years at a time. Every two years, individuals can request a renewal of deferred action as well as an extension of work authorization.
What about people already in removal proceedings?
Individuals in removal proceedings who meet the criteria for deferred action should be eligible to file for deferred action. . If a person is subject to a final order of removal and about to be removed, they should contact their lawyer immediately or call ICE’s Office of the Public Advocate at 888-351-4024 or EROPublicAdvocate@ice.dhs.gov. Persons who have already benefited from prosecutorial discretion can also apply for deferred action in order to pursue employment authorization.
What is the application process?
USCIS has not yet announced how it will receive applications. Any individuals claiming to be able to currently file applications should be ignored as there is no set process yet. We also do not know yet whether employment authorization documents will be applied for at the outset of the process or only after the deferred action has been approved. USCIS indicated in their press release that deferred action must be approved before applying for a work card, but this has been contradicted in other places. We should know the answer to this question shortly, however.
When can I apply?
USCIS has indicated they will begin accepting applications within 60 days of the June 15th announcement.
What will be the government’s fee to apply?
No announcement has been made yet on the amount of any fees.
Can I get a green card?
Deferred action does not in and of itself lead to the granting of a green card. If an applicant is otherwise eligible for a green card, there may be a possibility of being granted advance parole status which could allow a green card to be received via consular processing. But whether advance parole will be available or not is not yet known.
What types of law enforcement actions will disqualify an applicant?
Anyone with a conviction for a felony, a significant misdemeanor, three or more misdemeanors not occurring on the same date and not arising out of the same act, or otherwise posing a threat to national security or public safety will be barred from the program. All applicants will be subject to background checks including fingerprinting.
Felonies are criminal offenses punishable by jail time of at least one year. According to ICE,
“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.”
How will an individual document their age at arrival and time spent in the US continuously?
An individual can submit financial records, medical records, school records, employment records, military records and any other records that demonstrate the requirements are met.
Will beneficiaries of deferred action be able to travel outside the US?
USCIS is considering this issue and will announce the answer when it releases details on the deferred action application process in a few weeks.
What if I have been outside the US for short periods during the five year residency period?
USCIS will look at absences and if they consider them brief or innocent absences undertaken for humanitarian purposes, they will be excused.
Who can assist with filing a deferral application?
USCIS and ICE have strict rules regarding who can assist with preparing and filing applications. Only attorneys and representatives of specially approved non-profit organizations may do so. Anyone claiming to be able to file an application right now is also stating a falsehood. USCIS has warned the public not to work with so called “notarios” as such individuals are engaged in the unauthorized practice of law, a crime in every state. Individuals holding themselves out as immigration consultants are also violating unauthorized practice of law statutes in Tennessee, Arkansas and Mississippi. Furthermore, to the extent a notario or immigration consultant supplies false statements or documentation, law enforcement authorities may pursue criminal charges against an applicant as well as the notario/consultant. And deportation is a likely course of action in such cases.
Should I turn myself in to ICE if I think I can benefit from this program?
Individuals are strongly urged to consult with a lawyer before seeking to participate in the deferred action program in order to determine eligibility and ensure that the individual is not disqualified for any reason.
* copyright 2012. All rights reserved.
Greg Siskind is a partner in Siskind Susser's Memphis, Tennessee, office. After graduating magna cum laude from Vanderbilt University, he received his Juris Doctorate from the University of Chicago. Mr. Siskind is a member of AILA, a board member of the Hebrew Immigrant Aid Society, and a member of the ABA, where he serves on the LPM Publishing Board as Marketing Vice Chairman. He is the author of several books, including the J Visa Guidebook and The Lawyer's Guide to Marketing on the Internet. Mr. Siskind practices all areas of immigration law, specializing in immigration matters of the health care and technology industries. He can be reached by email at email@example.com.