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USCIS Announces More Details on Deferred Action

Posted by Admin on 2012-10-13

USCIS will begin accepting applications for consideration for deferred action beginning August 15, 2012. On August 14, 2012 USCIS published Form I-821D and its instructions on its web site at www.uscis.gov and also the filing locations. The application must be filed along with the work permit application (Form I-765) and its work sheet (Form I-765WS). The deferred application must be supported by enough evidence to prove eligibility. Deferred action is a temporary immigration status granted by the USCIS based on a variety of factors to those who typically lack other means of obtaining the right to remain in the United States. The particular program announced on June 15th is now open to those who are in proceedings, and will be open beginning August 15th to those who are not in proceedings and who apply affirmatively. Allows those who are granted it to receive two years of protection against removal or the initiation of removal proceedings and two years of employment authorization. The status is subject to renewal after two years (including renewal for those who turn 31 while in deferred action status), unless the program is terminated, but it will not lead to a path to permanent residency. Is a case-by-case discretionary act on the part of the USCIS and may be terminated at any time. Derivative family members (e.g., spouse and children) do not qualify for benefits unless they independently satisfy the eligibility requirements. Aliens who do not meet the eligibility requirements for the "Deferred Action for Childhood Arrivals" program may nevertheless qualify for deferred action based on humanitarian factors under the Service's preexisting program. Those who do not qualify or were denied and who are in proceedings or subject to a removal order may request that ICE exercise prosecutorial discretion under its June 2011 memorandum.

The main eligibility basis for applying for consideration for deferred actions is as follows:
•Applicants must have been under the age of 31 on June 15, 2012
•Applicants must have entered U. S. A before the age of 16 and before June 15, 2007.
•If applying affirmatively, the applicant must be at least 15 years of age on the date of application (not necessarily on June 15, 2012).
•Applicants must have continuously resided in the United States for at least five years preceding June 15, 2012 (or must have been continuously residing since June 15, 2007).
•Applicants must have been physically present in the United States on June 15, 2012, and must be physically present here when applying for deferred action.
•On the date of application (not necessarily on June 15, 2012), applicants must be in school, have graduated from or completed high school, have obtained a GED, or have been honorably discharged from the Coast Guard or U.S. Armed Forces.
•Applicants must not have been convicted of a felony, a significant misdemeanor, three or more minor misdemeanors, or otherwise pose a threat to national security or public safety.
•The program is open to those who are in removal proceedings, who are not in removal proceedings, as well as those who have an order of removal or voluntary departure.

Application Process
•The total fees for deferred action, employment authorization, and biometrics will be $465. Applicants will complete the new deferred action application form and the Form I-765. Given the current fees for an EAD ($380) and biometrics ($85), it appears that there will be no separate fee for deferred action. Applicants are not eligible to file a fee waiver request based on low income. However, there are limited fee exemptions for those whose income is below 150 percent of poverty and are either: (1) under 18, homeless, in foster care or otherwise lacking parental support; (2) unable to care for themselves because they suffer from a serious, chronic disability; or (3) have accumulated $25,000 or more in debt in the last year due to unreimbursed medical expenses. Those applicants should submit a letter, or possibly a special USCIS form, together with supporting documentation to the USCIS and wait until they have received the grant of fee exemption before applying for deferred action.
•Applicants will submit their completed forms, fee, and documentary evidence to a USCIS Lockbox where it will then be forwarded to one of four Service Centers, depending on where the applicant resides.
•All applicants will undergo biographic and biometric background checks, and after filing will receive an appointment to appear at their local Application Support Center for the taking of photos and fingerprints.
•Applicants in removal proceedings can also file affirmatively for deferred action with the USCIS, even if they are younger than 15. This includes those with a final order of removal and those with a voluntary departure order, provided they are not in detention. If they are in detention, they will not apply with the USCIS, but will notify their detention officer or contact the ICE Office of Public Advocate (888-351-4024) if they wish to be considered.
•Each application will be reviewed and adjudicated on a case-by-case basis. This review may require the applicant to submit additional documentation. Interviews are not a required part of the adjudication process, although in some cases applicants may be requested to appear at an interview at a local USCIS office for quality assurance or if fraud is suspected.
•If granted, deferred action and employment authorization will be valid for two years and may be extended, assuming the program is not terminated. Extensions or renewal of deferred action and employment authorization will be adjudicated on a case-by-case basis. The applicant for extended or renewed status and employment authorization may be over 31 provided he or she was under 31 on June 15, 2012.
•If denied, the applicant may not appeal or file a motion to reopen/reconsider. There will be a supervisory review process in place at the four Service Centers that will be adjudicating these requests for deferred action. Applicants who are denied may request review of the denial using the Service Request Management Tool process if the denial was based on a finding of abandonment and either: (1) the applicant responded to an RFE within the required time, or (2) the RFE was sent to the wrong address.

Disclaimer: Lal Varghese, Attorney at Law, with more than 35 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.