by Carl Shusterman*
Today, on August 3, 2012, the Department of Homeland Security (DHS) released a 16-page memo entitled "Deferred Action for Childhood Arrivals". This memo reveals various details regarding how the new deferred action program will work. The memo contains answers to many Frequently Asked Questions which we summarize below:
1. Is Deferred Action a law?
No. Deferred action is a discretionary determination on the part of DHS. It is an act of prosecutorial discretion. The new policy will allow certain foreign-born individuals who entered the United States as children to apply for 2-year work permits, and possibly for extensions. It is not a path to a green card or to U.S. citizenship.
2. Who is eligible for Deferred Action?
You may apply for Deferred Action starting on August 15, 2012 if you
- Were under the age of 31 as of June 15, 2012; th
- Came to the United States before reaching your 16
- Have continuously resided in the United States since June 15, 2007, up to the presenttime;
- Were physically present in the United States on June 15, 2012, and at the time of makingyour request for consideration of deferred action with USCIS;
- Entered without inspection before June 15, 2012, or your lawful immigration status expired as of June 15, 2012;
- Are currently in school, have graduated or obtained a certificate of completion from highschool, have obtained a general education development (GED) certificate, or are an honorably discharged veteran of the Coast Guard or Armed Forces of the United States; and
- Have not been convicted of a felony, significant misdemeanor, three or more other misdemeanors, and do not otherwise pose a threat to national security or public safety.
3. What forms do I use to apply, and what are the filing fees?
Beginning August 15, 2012, you will be required to submit your request for consideration of deferred action to USCIS through a form, along with a form requesting an employment authorization document. The total fees will be $465. USCIS is still developing the forms and will be submitting them to the Office of Management and Budget (OMB) for review. Pending OMB clearance, the forms and instructions will be available on the USCIS website on August 15, 2012. Do not submit any request to USCIS before these forms are available. All requests received before August 15, 2012 will be rejected. Before deciding your application, DHS will perform a background check on you.
4. If my application is denied, can I appeal?
You cannot an appeal or submit a motion to reopen/reconsider if your application is denied. However, the memo is silent about whether you can reapply for deferred action if you initial application is denied. In extremely limited situations, you can request a review of the denial. USCIS will implement a supervisory review process in all four Service Centers to ensure a consistent process for considering requests for deferred action for childhood arrivals. USCIS will require officers to elevate for supervisory review those cases that involve certain factors.
5. If my application is denied, can I be placed in removal proceedings?
Usually not. However, there are exceptions, so be very careful. Below is how the memo explains this:
- The absence was short and reasonably calculated to accomplish the purpose for the absence;
- The absence was not because of an order of exclusion, deportation, or removal;
- The absence was not because of an order of voluntary departure, or anadministrative grant of voluntary departure before you were placed in exclusion, deportation, or removal proceedings; and
- The purpose of the absence and/or your actions while outside the United States werenot contrary to law.
- Regardless of the sentence imposed, is an offense of domestic violence; sexual abuse or exploitation; burglary; unlawful possession or use of a firearm; drug distribution or trafficking; or, driving under the influence; or,
- If not an offense listed above, is one for which the individual was sentenced to time in custody of more than 90 days. The sentence must involve time to be served in custody, and therefore does not include a suspended sentence.