Deferred action is a discretionarydetermination to defer removal actionof an individual as an act ofprosecutorial discretion.
Deferred action does not conferlawful status upon an individual.An alien granted deferred action willnot be considered to be accruingunlawful presence in the UnitedStates during the period deferredaction is in effectDeferred action does not absolveindividuals of any previous orsubsequent periods of unlawfulpresence.
Under existing regulations, an individual whohas been granted deferred action is eligible toreceive employment authorization for the periodof deferred action, provided he or she candemonstrate “an economic necessity foremployment.”
Deferred action can be terminatedat any time at the agency’sdiscretion or renewed by theagency.
Pursuant to the Secretary’s June 15, 2012 memorandum,in order to be eligible for deferred action, individuals must: 1. Be under the age of thirty-one as of June 15, 2012.
2. Have cometo the UnitedStates underthe age ofsixteen.
If you have never been inremoval proceedings, or yourproceedings have beenterminated before yourrequest for consideration ofdeferred action for childhoodarrivals, you must be at least15 of age or older at the timeof filing and meet the otherguidelines.
If you are in removal proceedings, have a finalremoval order, or have a voluntary departure order,and are not in immigration detention, you canrequest consideration of deferred action forchildhood arrivals even if you are under the age of15 at the time of filing and meet the otherguidelines.
In all instances, you cannot be theage of 31 or older as of June 15,2012 to be considered for deferredaction for childhood arrivals.(But no age-outs!)
3. Have continuously resided in theUnited States since June 15, 2007.
A brief, casual, and innocent absence from the United Stateswill not interrupt your continuous residence. If you wereabsent from the United States for any period of time, yourabsence will be considered brief, casual, and innocent, if itwas before August 15, 2012, and:a. The absence was short and reasonably calculated toaccomplish the purpose for the absence;
b. The absence was not because of an order of exclusion,deportation, or removal;c. The absence was not because of an order of voluntarydeparture, or an administrative grant of voluntary departurebefore you were placed in exclusion, deportation, or removalproceedings; andd. The purpose of the absence and/or your actions whileoutside the United States were not contrary to law.
4. Be physically present in the UnitedStates on June 15, 2012, and at the time ofmaking your request for consideration ofdeferred action with USCIS.
5. Have enteredwithoutinspection beforeJune 15, 2012, oryour lawfulimmigrationstatus expired asof June 15, 2012.
6. Be currently in school, have graduated fromhigh school, have obtained a general educationdevelopment certificate, or are honorablydischarged veterans of the Coast Guard or ArmedForces of the United States.
To be considered “currently inschool” under the guidelines,you must be enrolled in schoolon the date you submit arequest for consideration ofdeferred action under thisprocess.
7. Have not beenconvicted of a felony, asignificantmisdemeanor,three or more othermisdemeanors, anddo not otherwise posea threat to nationalsecurity or publicsafety.
☛A felony is a federal, state, or localcriminal offense punishable byimprisonment for a term exceedingone year.
☛A significant misdemeanor is amisdemeanor as defined by federallaw (specifically, one for which themaximum term of imprisonmentauthorized is one year or less butgreater than five days) and that meetsthe following criteria:
Regardless of the sentence imposed, is anoffense of:(i)domestic violence;(ii)sexual abuse or exploitation;(iii)burglary;(iv)unlawful possession or use of a firearm;(v)drug distribution or trafficking; or,(vi)driving under the influence;
ORIf not an offense listed above, is one forwhich the individual was sentenced to timein custody of more than 90 days.The sentence must involve time to be servedin custody, and therefore does not include asuspended sentence/ICE hold.
☛ a non-significant misdemeanor is anymisdemeanor as defined by federal law(specifically, one for which the maximum term ofimprisonment authorized is one year or less butgreater than five days) and that meets thefollowing criteria:
Is not an offense of domestic violence; sexualabuse or exploitation; burglary; unlawfulpossession or use of a firearm; drugdistribution or trafficking; or, driving under theinfluence; and
Is one for which the individual was sentencedto time in custody of 90 days or less.
What qualifies as a national security or public safetythreat?Indicators that you pose such a threat include, but are not limitedto, gang membership, participation in criminal activities, orparticipation in activities that threaten the United States.
1. Submit your request forconsideration of deferred action toUSCIS (Form I-821D); AND2. Submit a form requesting anemployment authorization document(Forms I-765/I-765WS).
3. Submit thegovernment filingfee in the amount of$465. (There are VERY LIMITED fee waivers available for employment authorization applications connected to the deferred action for childhood arrivals process).
☛ You cannot file a motion to reopenor reconsider, and cannot appeal thedecision if USCIS denies your requestfor consideration of deferred action forchildhood arrivals. Maybe refile?
☛ Unless the program has beenterminated, you may requestconsideration for an extension of thatperiod of deferred action.☛ You must also request an extension ofyour employment authorization.
Very limited fee exemption:•Must be filed and approved before fileapplication for deferred action•Must submit a letter/supporting docs showing: • Under 18, homeless, in foster care or otherwise lacking parental/familial support and income is less than 150% of U.S. poverty line
• Cannot care for yourself due to serious, chronic disability AND income less than 150% of U.S. poverty level.• You have, at time of request, accumulated $25,000 + in debt over past 12 months as a result of unreimbursed medical expenses for you or an immediate family member AND your income less than 150% of U.S. poverty level
Dependents (parents/spouse, etc.)•Process is only available for those who qualifyin their own right.•Immediate relatives may not be considered aspart of application unless they independentlysatisfy the guidelines
Affidavits may only be used if the documentary evidenceavailable to you is insufficient or lacking:1. A gap in the documentation demonstrating that you meet thefive year continuous residence requirement; and2. A shortcoming in documentation with respect to the brief,casual and innocent departures during the five years of requiredcontinuous presence.Submit two or more affidavits, sworn to or affirmed by people other thanyourself, who have direct personal knowledge of the events and circumstances.
If you are currently in immigrationdetention...•Identify yourself to your detentionofficer; or•Contact the ICE Office of the PublicAdvocate at 1-888-351-4024 (M-F 9-5pm)or via email atEROPublicAdvocate@ice.dhs.gov
If you are about to be removed by ICE…•Immediatelycontact either the LawEnforcement Support Center’s hotline at 1-855-448-6903 (staffed 24/7); or•Contact the ICE Office of the Public Advocateat 1-888-351-4024 (M-F 9-5pm) or via email atEROPublicAdvocate@ice.dhs.gov
If you have an application forasylum/cancellation of removal pendingbefore USCIS/EOIR on June 15, 2012 (and nostatus)….•May request deferred action if qualify basedon eligibility criteria
If you have a final removal order or a voluntarydeparture order….•May request deferred action if qualify basedon eligibility criteria
Potential pitfalls andissues for Deferred Action applicant
1. Potentially severe consequences:If USCIS denies your application, USCIS willapply its policy guidance governing the referralof cases to U.S. Immigration and CustomsEnforcement (ICE) and the issuance of Noticesto Appear (NTA).www.uscis.gov/NTA
If your case does not involve a criminaloffense, fraud, or a threat to national securityor public safety, your case should not bereferred to ICE for purposes of removalproceedings except where DHS determinesthere are exceptional circumstances.
2. Can be rescinded at any time:This policy was enacted by the DemocraticExecutive Branch. This is not a law andtherefore if a new president takes office it canbe lifted quite easily, as it does not need to berepealed.Gov. Romney’s staff clarified on October 2nd thathe would only honor grants already made byDHS before the date he would take the oath ofoffice, January 20, 2013.
3. Issues around travel abroad:After August 15, 2012, if you travel outside of theUnited States, you will not be considered for deferredaction under this process. If USCIS defers action inyour case, you will be permitted to travel outside of theUnited States only if you apply for and receive advanceparole (travel authorization) from USCIS.Note: If you are in unlawful status and/or are currently in removal proceedings,and you leave the United States without a grant of advance parole, you will bedeemed to have removed yourself and will be subject to any applicable grounds ofinadmissibility if you seek to return.
Advance Parole:•Can ONLY apply once approved for DeferredAction•File Application for travel document•Pay $360 filing fee•Case-by-case basis – humanitarian,educational or employment purposes
4. Criminal ConvictionsDriving under the influence is a significantmisdemeanor regardless of the sentenceimposed. Expungement?
5. Discrimination?Anti-discrimination provision of the INA provides that employers may notdiscriminate in the hiring process on the basis of an applicants citizenship status inthe case of a "protected individual," defined to include citizens and nationals of theUnited States, certain lawful permanent residents, refugees and asylees.Beneficiaries of the DACA program do not have a citizenship status that falls withinthe definition of a "protected individual," and therefore are not protected fromcitizenship status discrimination under the anti-discrimination provision.But - all individuals with employment authorization, including those fallingoutside the definition of a "protected individual," are protected from nationalorigin discrimination and from document abuseEmployers may not use the "temporary nature“ of an individualsemployment authorization as a pretext for discrimination on the basis ofnational origin.
6. Issues for employers?•DACA applicant asks for employment verificationletter = constructive notice•Honesty Policy? (Must be applied uniformly orelse discrimination?•Letter from employer = potential I-9 audit?Updated USCIS DACA FAQ – 09/14/2012 – on issue of employment letters to DACA applicants:You may, as you determine appropriate, provide individuals requesting deferredaction for childhood arrivals with documentation which verifies their employment.This information will not be shared with ICE for civil immigration enforcementpurposes pursuant to INA section 274A unless there is evidence of egregiousviolations of criminal statutes or widespread abuses.
QUESTIONS??? www.wolfsdorf.com 800-VISA-LAW email@example.com Santa Monica Office New York Office 1416 2nd Street 641 Lexington Ave, 15th Floor Santa Monica, CA 90401 New York, NY 10022 (310) 570-4088 212-899-5040http://www.facebook.com/2012DeferredAction http://www.twitter.com/wolfsdorfhttp://www.facebook.com/800visalaw
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