Deferred Action for Dreamers is Becoming a Reality

On August 3, 2012, the U.S. Citizenship & Immigration Services (USCIS) provided important information regarding the relief application that USCIS is calling “Deferred Action for Childhood Arrivals.”  This relief will be offered to certain young persons who entered the United States at a young age before June 15, 2007, resided in the United States since that time, and sought secondary education in the United States.  This relief does not confer full lawful status or a path to permanent residence or citizenship, but, when granted, will defer any possible removal action against the applicant for a period of two years, subject to renewal.  During the two-year period, the applicant will be eligible to apply for work authorization, and if granted, can apply for a Social Security number, driver’s license, and other state benefits.  We are hopeful that this will lead to renewed action in Congress to achieve comprehensive immigration reform.

Beginning on August 15, 2012, USCIS will accept applications for this new program.  A new application form and filing instructions are forthcoming.  Pending clearance, the new form should be available on August 15, 2012.  USCIS will require a filing fee of $465.00, subject to strict exemptions for those unable to pay the fee.  USCIS will reject any and all application submitted before August 15, 2012. 

Deferred Action will be available to persons meeting the following criteria: (1) under age 31 as of June 15, 2012; (2) came to the U.S. before age 16; (3) continuous residence in the U.S. since at least June 15, 2007, up to the present date; (4) physical presence in the U.S. on June 15, 2012, and at the time of the application for Deferred Action; (5) currently out of status (either entered without inspection, or status has expired as of June 15, 2012); (6) currently in high school, have graduated or obtained 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 U.S. Armed Forces; and, (7) have not been convicted of a felony, significant misdemeanor (including DUI), three or more other misdemeanors.

USCIS has advised that brief, casual, and innocent departures from the United States before August 15, 2012 will not interrupt the period of continuous residence so long as the absence was not the result of a deportation or removal order, or an order of voluntary departure; the absence was short and reasonably calculated to accomplish the purpose of the absence; and the purpose of the absence or the actions outside the United States were not contrary to the law.

In order to be eligible, an applicant must be out of status.  Persons with a pending but not yet adjudicated application for a visa or permanent resident status may apply, but persons who are still within a period of authorized visa status may not apply.  Deferred Action will be available to persons meeting the above-stated criteria, regardless of whether the applicant is currently in removal or deportation proceedings; has previously been ordered deported or removed; has previously been granted voluntary departure; or has never been before an immigration judge.  All applications will be filed with USCIS, even if the applicant is in removal proceedings, except that persons who are currently detained must file their applications with Immigration & Customs Enforcement (ICE). 

USCIS places strict restrictions on applicants with criminal histories.  In general, juvenile convictions will not automatically bar an application, but will be considered on a case-by-case basis.  Any adult felony will bar an application, as well as “serious misdemeanors,” which has been broadly defined to include an offense of domestic violence, sexual abuse or exploitation, burglary, unlawful possession of a firearm, drug distribution, and driving under the influence.  Other offense not specifically listed might also be considered to bar an application.  A potential applicant with any criminal history whatsoever must disclose and discuss the criminal history with his or her attorney to determine if the person is eligible for this relief.

Persons granted deferred action will be able to apply for travel permission outside of the United States.  Applicants can only apply for travel permission after deferred action is granted, not while pending, and may do so by filing a separate application with a separate fee.  In general, travel permission will only be granted for humanitarian purposes, educational purposes, or employment purposes.  

Applicants must have strong evidence to prove eligibility, including some type of proof of entry into and continuous presence in the United States, and proof of enrollment in or completion of high school.  Evidence may include: financial records, medical records, school records, employment records, and military records.  Circumstantial evidence (indirect evidence) and affidavits are given less weight, but may be considered when direct evidence is not available. 

In general, applicants who are not granted deferred action will not be placed in removal proceedings unless the case involves criminal issues, fraud, or threats to national security.  Persons granted deferred action will not be referred to ICE, and information provided in the application will be not be used to remove the applicant from the United States, but may be shared with ICE, Customs & Border Patrol (CBP), or other agencies to determine eligibility. 

On account of the extensive requirements for documentary evidence and the strict guidelines for eligibility—especially for those with criminal histories, or any exits from the United States during the past five years—potential applicants are well advised to retain a knowledgeable and experienced immigration attorney in order to obtain this new relief.