USCIS Moving Forward With Deferred Action for “DREAMers”

The U.S. Citizenship and Immigration Services (USCIS) is moving forward regarding the implementation of temporary relief, known as deferred action, for certain undocumented foreign nationals who were brought to the United States as children. The eligibility requirements are similar to the proposed, but never enacted, legislation known as the DREAM Act. It is expected that details of the application process will be released on August 1, 2012. While there are children who entered the United States without legal status, there are also cases in which, due to an oversight, a minor child/ren entered in H-4, L-2, or another status, and inadvertently lost status. The former H-4, L-2, or B-2 child/ren, in such situations could be eligible to take advantage of the benefits afforded under this Deferred Action program.

Background: Prosecutorial Discretion and Deferred Action

The Obama Administration has implemented significant policy change with respect to the pursuit of removal (formerly deportation) actions against undocumented individuals considered to be low priority risk to the United States. These policy matters were reported in our NewsBrief, Administrative Policy on Removal: A Matter of Priorities (14.Oct.2011).

As a continuation of the policy of prosecutorial discretion, President Obama and the Department of Homeland Security (DHS) announced the creation of temporary immigration relief for certain undocumented foreign nationals who were brought to the United States as children. The similarity with the DREAM Act provisions has led the group of eligible foreign nationals to be dubbed “DREAMers.” This important change and the basic requirements were reported to MurthyDotCom readers in our NewsBrief, Foreign Nationals Brought to U.S. as Children Given Temporary Relief (22.Jun.2012).

Timeframe: August 15, 2012 Implementation

The USCIS is required to establish procedures and implement an application process for DREAMers, who are not currently in removal proceedings, to request deferred action within sixty days of June 15, 2012. Thus, DHS Secretary Janet Napolitano recently advised Congress that new information will be released on August 1, 2012. This information is expected to contain details of the application process, which will begin on August 15, 2012.

The upcoming announcements will address key issues, including processing and application fees. The potential cost to the government is just one of the controversies surrounding this program. Secretary Napolitano has indicated that the program will be fee based. Costs to the government will include additional personnel; DHS expects to expand the number of contractors utilized to process applications. The government has estimated that the volume of filings potentially could reach one million in the first year.

Deferred Action Only Provides Temporary and Limited Relief

The relief offered to eligible DREAMers is limited to a two-year grant of deferred action. The benefits will include eligibility for employment authorization during the period of deferred action. There is no certainty as to whether this relief will be extended, or if more long-term or permanent options will be made available. Clearly, the long-term fate for DREAMers depends upon the results of the upcoming elections and future changes to immigration laws and policies.

Stay Informed and Be Prepared

Potentially eligible foreign nationals should stay informed about the deferred action option. They need to be mindful of deadlines and other requirements. They should assess risk factors, both for participation and non-participation. Those who choose to take advantage of the deferred action option should also evaluate whether any other immigration options are available to them. Such individuals may be eligible for more standard family or employment-based immigration cases that could provide relief for the long term. Eligible individuals would likely face a series of hurdles to immigration benefits that are longer term. However, they will no longer need to fear that an immigration filing, such as a family preference petition, would generate detection and enforcement action against them. Attorneys at the Murthy Law Firm are available to assist individuals who are potentially eligible. We can advise them as they weigh their options and pursue the appropriate course of action. Watch MurthyDotCom for more developments in this area.

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