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Carl Shusterman's Immigration Update

DHS's Latest Guidance on Deferred Action

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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

  1. Were under the age of 31 as of June 15, 2012; th
  2. Came to the United States before reaching your 16
  3. Have continuously resided in the United States since June 15, 2007, up to the presenttime;
  4. 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;
  5. Entered without inspection before June 15, 2012, or your lawful immigration status expired as of June 15, 2012;
  6. 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
  7. 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?

You are required to submit form I-821D, Consideration of Deferred Action for Childhood Arrivals. If you are applying for employment authorization, you must also submit forms I-765 and I-765WS. In order to receive employment authorization, you must demonstrate “an economic necessity for employment”. We link to each of these forms and instructions for completing these forms from our Deferred Action page.

The total fees are $465.

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:

Information provided in this request is protected from disclosure to U.S. Immigration and Customs Enforcement (ICE) and U.S. Customs and Border Protection (CBP) for the purpose of immigration enforcement proceedings unless the requestor meets the criteria for the issuance of a Notice To Appear or a referral to U.S. Immigration and Customs Enforcement under the criteria set forth in USCIS's Notice to Appear guidance. Individuals whose cases are deferred pursuant to the consideration of deferred action for childhood arrivals process will not be referred to ICE. The information may be shared with national security and law enforcement agencies, including ICE and CBP, for purposes other than removal, including for assistance in the consideration of deferred action for childhood arrivals, to identify or prevent fraudulent claims, for national security purposes, or for the investigation or prosecution of a criminal offense. The above information sharing policy covers family members and guardians, in addition to the requestor.

This policy, which may be modified, superseded, or rescinded at any time without notice, is not intended to, does not, and may not be relied upon to create any right or benefit, substantive or procedural, enforceable at law by any party in any administrative, civil, or criminal matter.

6. If my application for deferred action is approved, can I travel outside of the U.S.?

Not automatically. If USCIS has decided to defer action in your case and you want to travel outside the United States, you must apply for advance parole by filing a Form I-131, Application for Travel Document and paying the applicable fee ($360). USCIS will determine whether your purpose for international travel is justifiable based on the circumstances you describe in your request. Generally, USCIS will only grant advance parole if you are traveling for humanitarian purposes, educational purposes, or employment purposes. You may not apply for advance parole unless and until USCIS determines whether to defer action in your case pursuant to the consideration of deferred action for childhood arrivals process. You cannot apply for advance parole at the same time as you submit your request for consideration of deferred action for childhood arrivals. All advance parole requests will be considered on a case-by-case basis.

7. If I have traveled outside the United States since June 15, 2007, can I still qualify for deferred action?

A brief, casual, and innocent absence from the United States will not interrupt your continuous residence. If you were absent from the United States for any period of time, your absence will be considered brief, casual, and innocent, if it was before August 15, 2012, and:

  1. The absence was short and reasonably calculated to accomplish the purpose for the absence;
  2. The absence was not because of an order of exclusion, deportation, or removal;
  3. 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
  4. The purpose of the absence and/or your actions while outside the United States were not contrary to law.

8. If I am no longer attending school, and do not have a high school degree or a GED, am I still eligible for deferred action?

To be considered "currently in school" under the guidelines, you must be enrolled in school on the date you submit a request for consideration of deferred action under this process. So, in your case, you should enroll in school prior to submitting your application for deferred action.

9. I am currently in removal proceedings. How can I apply for deferred action?

Persons in removal proceedings, those with a final order or with a voluntary departure order may apply for deferred action. Submit your request to the USCIS.

10. I am under a Final Order of Removal and am in ICE custody, can I still apply for deferred action?

Yes. However, you should not submit your application to the USCIS, but should identify yourself to your detention officer or contact the ICE Office of the Public Advocate through the Office's hotline at 1-888-351-4024 (staffed 9am - 5pm, Monday - Friday) or by e-mail at

11. If I have been convicted of a misdemeanor, can I still qualify for deferred action?

Only if you were not convicted of a "significant misdemeanor" or of 3 or more misdemeanors.

A "significant misdemeanor" is a misdemeanor as defined by federal law (specifically, one for which the maximum term of imprisonment authorized is one year or less but greater than five days) and that meets the following criteria:

  1. 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,
  2. 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.

The time in custody does not include any time served beyond the sentence for the criminal offense based on a state or local law enforcement agency honoring a detainer issued by U.S. Immigration and Customs Enforcement (ICE). Notwithstanding the above, the decision whether to defer action in a particular case is an individualized, discretionary one that is made taking into account the totality of the circumstances. Therefore, the absence of the criminal history outlined above, or its presence, is not necessarily determinative, but is a factor to be considered in the unreviewable exercise of discretion. DHS retains the discretion to determine that an individual does not warrant deferred action on the basis of a single criminal offense for which the individual was sentenced to time in custody of three months or less.

12. Do I need to hire an attorney in order to apply for deferred action?

Not necessarily. The memo advises applicants to visit the DHS "Avoid Scams" page to protect yourself. However, if there are issues with your application: unlawful entries to the U.S. during the past 5 years, criminal convictions, removal proceedings, etc., it may be to your advantage to get some legal advice before you apply. If you are considering hiring an attorney to represent you, we suggest that you view on our video "How to Select An Immigration Attorney".


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* Carl Shusterman has practiced immigration law for over 35 years, first as an INS Attorney (1976-82) and for the past 30 years in private practice. He has testified as an expert witness before the Senate Immigration Subcommittee. Mr. Shusterman is a Certified Specialist in Immigration and Nationality Law and is the webmaster of two popular websites which provide immigration information and advice to the public, one in English and one in Spanish.

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Updated 12-02-2013 at 05:45 PM by CShusterman


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