DHS Update on Deferred Action – August 2012

In a recent conference call, the Department of Homeland Security (DHS) released additional information regarding the new deferred action process for certain individuals who arrived in the United States as children. Following is a summary of the most recent information available regarding this new program.

Background: June 15, 2012 Announcement

As regular MurthyDotCom readers are aware, the DHS announced on June 15, 2012 the creation of a program intended to benefit certain foreign nationals who are in the United States without valid immigration status. The qualified individuals are those who were brought into the country while under 16 years of age. These individuals, if otherwise qualified, may be eligible to apply for deferred action. A grant of deferred action would permit them to remain in the United States for a temporary period and to receive the employment authorization document (EAD) during that time. The initial grant of deferred action is limited to a two-year period.

Eligibility for the program is limited to individuals who were under the age of 31 as of June 15, 2012 and who came to the United States before age 16. They must show that they have continuously resided in the U.S. since June 15, 2007 (for five years); and must have been physically present in the United States on June 15, 2012, and at the time of applying for deferred action.

Applicants must have entered the United States without inspection before June 15, 2012, or their lawful immigration status must have ended as of June 15, 2012. Applicants must currently be in school, have graduated or obtained a certificate of completion from high school, or have earned a general education development (GED) certificate. Alternatively, they can qualify if they are honorably discharged veterans of the Coast Guard or Armed Forces of the United States. Applicants will undergo biometric background checks, and must not have certain types of convictions, discussed below.

New Program FAQs

The DHS has posted a Frequently Asked Questions (FAQs) document on the USCIS WebSite. The FAQs provide important information for potential applicants and should be carefully reviewed prior to applying for deferred action.

New Form from August 15, 2012

Applications for deferred action for childhood arrivals have been accepted since August 15, 2012. These applications are made on a newly-created form (I-821D). Applicants should submit a separate EAD request form (I-765). The filing fee is set at $465 per application, with very limited exemptions.

Documents Required for Deferred Action Filing

The USCIS clarified that it will require documentary evidence and, in most instances, will not accept affidavits or sworn statements to prove eligibility for deferred action. The USCIS will require school, employment, medical, or financial records, or similar official documents to prove entry to the United States before age 16, and the physical presence requirements. Affidavits from friends or family generally will not serve as substitutes for official records to prove these requirements.

Continuous Residence: Absences from the U.S.

A “brief, casual, and innocent” departure from the United States during the continuous residence period will not bar an application for deferred action, provided certain conditions are met. The applicant must prove that the absence was short and reasonably calculated to accomplish the purpose for the absence and that the purpose of the absence and the individual’s actions while outside the United States were not contrary to law. The absence must not have been due to an order of exclusion, deportation, or removal or pursuant to voluntary departure.

Criminal Records

Unless there are exceptional circumstances, one is deemed ineligible for deferred action pursuant to this program if s/he has been convicted of a felony; has been convicted of three or more misdemeanors that did not occur on the same date and arise out of the same conduct; or has been convicted of a “significant misdemeanor.” A significant misdemeanor is defined as a crime involving the following:  domestic violence; sexual abuse or exploitation; burglary; unlawful possession or use of a firearm; drug distribution and/or trafficking; driving under the influence; or any offense for which one was actually sentenced to serve 90 days or more in jail. The DHS emphasized that convictions under state immigration laws (such as those in Arizona) will not be considered convictions for this purpose.

Age-Specific Rules Considerations

In addition to the general age requirements, there are two other age-specific considerations.

• A person granted deferred action does not accrue unlawful presence for the purpose of the three or ten-year inadmissibility bar. Unlawful presence accrues while the application is pending, except for an application filed while s/he was under 18 years old.
• A person not in removal (deportation) proceedings must be at least 15 years old to apply for benefits under the deferred action program.

No Appeal or Motion to Reopen

There is no right to file an appeal, or a motion to reopen or reconsider a USCIS denial of deferred action. The USCIS states that a person whose application is denied due to administrative error may request reconsideration by filing a service request through normal channels.

Conclusion

Deferred action is not a grant of any permanent status and, under its current terms, it is not a path to a green card or U.S. citizenship. Individuals who are potentially eligible for a grant of deferred action under this program should secure competent legal advice before applying. The future of this program and any similar relief depends on politics and government policy.

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