DEFERRED ACTION FOR CERTAIN YOUNG PEOPLE WHO CAME TO THE UNITED STATES AS CHILDREN

Posted by Admin on July 26, 2012 | 1 Comment

On June 15, 2012, Department of Homeland Security (DHS) issued a memorandum to U.S. Customs and Border Protection (CBP), U.S. Citizenship and Immigration Services (USCIS), and U.S. Immigration and Customs Enforcement (ICE), the three agencies under the DHS, explaining how prosecutorial discretion should be used with respect to individuals who came to the United States as children. The memorandum directs that certain young people who do not present a risk to national security or public safety and meet specified criteria will be eligible to receive deferred action for two years, subject to renewal, and also eligible to apply for work authorization. Requests for relief are to be decided on a case-by-case basis, and applicants must pass a background check before they can receive deferred action.

Deferred action is a discretionary DHS decision not to pursue enforcement against a person for a specific period of time. A grant of deferred action does not confer any lawful immigration status or alter an individual’s existing immigration status or grant amnesty leading to permanent resident status or citizenship. It is just deferring or postponing the deportation of such individuals and allowing them to stay and work in United States by issuing the work permits. While deferred action does not cure any prior period of unlawful presence, time in deferred action status is considered a period of stay authorized by the Secretary of DHS, but not having any legal status. An individual does not accrue unlawful presence for purposes of INA § 212(a)(9)(B) and (C)(i)(I) while in deferred action status. However, deferred action cannot be used to establish eligibility for any immigration benefit that requires maintenance of lawful status. A grant of deferred action can be renewed or terminated at any time by the DHS.

To establish their eligibility for deferred action under the new memorandum, individuals must provide “verifiable documentation” showing that they: Arrived in the United States when they were under the age of 16; Have continuously resided in the United States for at least five years prior to June 15, 2012, and were present in the United States on June 15, 2012 (the date of the memorandum); Are currently in school, have graduated from high school, have obtained a general education development (GED) certificate, or are honorably discharged veterans of the U.S. Coast Guard or the U.S. Armed Forces; Have not been convicted of a felony offense, a significant misdemeanor offense, multiple misdemeanors, or otherwise pose a threat to national security or public safety; and Are not above the age of 30.

Applicants eligible for seeking for deferred action must document three aspects of their physical presence and residence in the United States, namely, (1) entered the United States before they reached age 16; (2) have continuously resided in the country for at least five years preceding the date of the memorandum; and (3) were physically present in the U.S. on June 15, 2012. Individuals are not eligible for deferred action if they have been convicted of a felony offense, a significant misdemeanor offense, multiple misdemeanor offenses, or otherwise pose a threat to national security or public safety. A “felony offense” includes any federal, state or local criminal offense punishable by imprisonment for more than one year. Thus, some state misdemeanor offenses may be characterized as felonies for purposes of the new memorandum. A “significant misdemeanor” includes any federal, state or local criminal offense punishable by up to one year of imprisonment or even no imprisonment and involving 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.

ICE and CBP have been instructed to immediately exercise their discretion, on a case-by-case basis, to prevent individuals who meet the eligibility criteria from being apprehended, held under ICE detainers, placed into removal proceedings, or removed from the United States. USCIS will adjudicate deferred action requests for individuals who are not currently in removal proceedings or subject to a final order of removal. In addition to the eligibility criteria discussed above, applicants who fall within this category must be at least fifteen years old. Individuals who are under fifteen but who otherwise meet the eligibility criteria can apply for deferred action once they turn fifteen. This process is not yet in effect, and no applications for deferred action should be submitted to USCIS at this time. The DHS has been granted 60 days time from June 15th to formulate procedures or accepting applications for this deferred action. Individuals who receive deferred action may apply for and obtain employment authorization if they can establish an economic necessity for employment. Application for Employment Authorization should be filed with USCIS after deferred action is granted. An individual who applies for and receives a renewal of deferred action separately must request a renewal of his or her employment authorization.

DHS has not yet decided whether individuals granted deferred action will be able to travel abroad. Until this issue has been resolved, individuals who meet the eligibility criteria should remain in the United States. Even if overseas travel is permitted, it may not be in your best interest. Although unlawful presence will not accrue during any deferred action period, prior periods of unlawful presence may render individuals who leave the United States subject to the three or ten year bars and resulting inadmissibility for immigration benefits. Only individuals who meet all the eligibility criteria will be granted deferred action under the new memorandum. Family members who do not independently qualify will not receive deferred action pursuant to this process. Currently, there is no process for individuals to request deferred action under the new memorandum. However, individuals who qualify for relief should begin gathering the documents necessary to establish their eligibility. In addition to the documents discussed above, applicants should obtain certified copies of their birth certificates or passports to establish their identity and age.

If you believe you are eligible please contact an immigration attorney and do not fall in to the trap of notarios and other persons who are not authorized to practice immigration law and not authorized to fill out forms and file with the USCIS. If you file your applications for deferred action through such people it is more likely that they may be denied and you may be put in to deportation proceedings. Hence it is important that you seek the help of an immigration attorney of your choice in this matter.

Disclaimer: Lal Varghese, Attorney at Law, with more than 25 years of experience, mainly practices in U. S. immigration law and is located in Dallas, Texas. He does not claim authorship for above referenced information. Lal Varghese, Attorney at Law or the publisher is not responsible or liable for anything stated above, since it is generalized information about the subject matter collected from various legal sources. For individual cases and specific questions you are advised to consult any attorney of your choice in your State of residence or contact your State Bar Organizations or local Bar Associations for finding an attorney or for any legal help. You can visit our website at: www.indiaimmigrationusa.com or www.indiaimmigrationusa.blogspot.com for information about U. S. immigration law related matters. Lal Varghese, Attorney at Law can be reached at (972) 788-0777 or at his e-mail: attylal@aol.com if you have any questions.