DEFERRED ACTION FOR YOUNG PEOPLE (Dreamers)

 

Who is eligible to receive deferred action under the Department’s new directive?

Pursuant to the Secretary’s June 15, 2012 memorandum, in order to be eligible for deferred action, individuals must:

1. Have come to the United States under the age of sixteen;

2. Have continuously resided in the United States for at least five years preceding June 15, 2012 and are present in the United States on June 15, 2012;

3. Currently be in school, have graduated from high school, have obtained a general education development certificate, or are honorably discharged veterans of the Coast Guard or Armed Forces of the United States;

4. Have not been convicted of a felony offense, a significant misdemeanor offense, multiple misdemeanor offenses, or otherwise pose a threat to national security or public safety;

5. Not be above the age of thirty.

Individuals must also complete a background check and, for those individuals who make a request to USCIS and are not subject to a final order of removal, must be 15 years old or older.

What is deferred action?

Deferred action is a discretionary determination to defer removal action of an individual as an act of prosecutorial discretion. Deferred action does not confer lawful status upon an individual. In addition, although an alien granted deferred action will not be considered to be accruing unlawful presence in the United States during the period deferred action is in effect; deferred action does not absolve individuals of any previous or subsequent periods of unlawful presence.

Under existing regulations, an individual who has been granted deferred action is eligible to receive employment authorization for the period of deferred action, provided he or she can demonstrate “an economic necessity for employment.” Deferred action can be terminated at any time at the agency’s discretion or renewed by the agency.

Individuals who have been convicted of any felony, a significant misdemeanor offense, three or more misdemeanor offenses not occurring on the same date and not arising out of the same act, omission, or scheme of misconduct, or otherwise pose a threat to national security or public safety are not eligible to be considered for deferred action under the new process.

Are individuals who receive deferred action pursuant to the new directive eligible for employment authorization?

Yes. Pursuant to existing regulations, individuals who receive deferred action may apply for and may obtain employment authorization from USCIS provided they can demonstrate an economic necessity for their employment. Information about employment authorization requests is available on USCIS’ s website at http://www.uscis.gov/i-765.

Does the process result in permanent lawful status for beneficiaries?

No. The grant of deferred action under this new directive does not provide an individual with permanent lawful status or a pathway to obtaining permanent lawful status. Only the Congress, acting through its legislative authority, can confer the right to permanent lawful status.

Why will deferred actions only be granted for two years?

Grants of deferred action will be issued in increments of two years. At the expiration of the two year period, the grant of deferred action can be renewed, pending a review of the individual case.

If an individual’s period of deferred action is extended, will individuals need to re-apply for an extension of their employment authorization?

Yes. If an individual applies for and receives an extension of the period for which he or she was granted deferred action, he or she must also request an extension of his or her employment authorization.

Does this policy apply to those who are subject to a final order of removal?

Yes. An individual subject to a final order of removal who can demonstrate that he or she meets the eligibility criteria can request a review of his or her case and receive deferred action for a period of two years, subject to renewal. All cases will be considered on an individualized basis.

This process is not yet in effect and requests should not be submitted at this time. In the coming weeks, USCIS will outline and announce the procedures by which individuals can engage in this process. Beginning June 18, individuals may call the USCIS hotline at 1-800-375-5283, from 8 a.m. to 8 p.m., with questions or to request more information on the new process. The hotline offers assistance in English and Spanish. Individuals seeking more information on the new process should visit USCIS’ s website (at http://www.uscis.gov).

How soon after USCIS receives a request to review a case will the individual receive a decision on his or her request?

USCIS will provide additional information on this issue in the coming weeks. Information will be made publicly available at http://www.uscis.gov

If an individual who is about to be removed by ICE believes he or she satisfies the eligibility criteria for the new process, what steps should he or she take to ensure his or her case is reviewed before removal?

Individuals who believe they can demonstrate that they satisfy the eligibility criteria and are about to be removed should immediately contact either the Law Enforcement Support Center’s hotline at 1-855-448-6903 (staffed 24 hours a day, 7 days a week) or the ICE Office of the Public Advocate through the Office’s hotline at 1-888-351-4024 (staffed 9 am – 5 pm, Monday – Friday) or by e-mail at EROPublicAdvocate@ice.dhs.gov.

If an individual who satisfies the eligibility criteria is encountered by Customs and Border Protection (CBP) or ICE, will he or she be placed into removal proceedings?

This policy is intended to allow ICE and CBP to focus on priority cases. Pursuant to the direction of the Secretary of Homeland Security, for individuals who satisfy the eligibility criteria, CBP or ICE should exercise their discretion to prevent them from being apprehended, placed into removal proceedings, or removed. If individuals, including individuals in detention, believe they were placed into removal proceedings in violation of this policy, they should contact either the Law Enforcement Support Center’s hotline at 1-855-448-6903 (staffed 24 hours a day, 7 days a week) or the ICE Office of the Public Advocate through the Office’s hotline at 1-888-351-4024 (staffed 9 am – 5 pm, Monday – Friday) or by e-mail at EROPublicAdvocate@ice.dhs.gov.

If an individual accepted an offer of administrative closure under the case-by-case review process or if his or her case was terminated as part of the case-by-case review process, can he or she receive deferred action under the new process?

Yes. Individuals who can demonstrate that they meet the eligibility criteria will be eligible for deferred action even if they had accepted an offer of administrative closure or termination under the case-by-case review process. For individuals who are in removal proceedings and have already been identified as meeting the eligibility criteria as part of ICE’s case-by-case review, ICE will immediately begin to offer deferred action for a period of two years, subject to renewal.

If an individual declined an offer of administrative closure under the case-by-case review process, can he or she receive deferred action under the new process?

Yes. Individuals who can demonstrate that they meet the eligibility criteria will be eligible for deferred action even if they declined an offer of administrative closure under the case-by-case review process.

If an individual’s case was reviewed as part of the case-by-case review process but he or she was not offered administrative closure, can he or she receive deferred action under the new process?

Yes. Individuals who can demonstrate that they meet the eligibility criteria will be eligible for deferred action even if they were not offered administrative closure following review of their case as part of the case-by-case review process.

Will DHS personnel responsible for reviewing requests for an exercise of prosecutorial discretion under this process receive special training?

Yes. ICE and USCIS personnel responsible for considering requests for an exercise of prosecutorial discretion under the Secretary’s directive will receive special training.

Will individuals be subject to background checks before they can receive an exercise of prosecutorial discretion?

Yes. All individuals will undergo biographic and biometric background checks prior to receiving an exercise of prosecutorial discretion. Individuals who have been convicted of any felony, a significant misdemeanor offense, three or more misdemeanor offenses not occurring on the same date and not arising out of the same act, omission, or scheme of misconduct, or otherwise pose a threat to national security or public safety are not eligible to be considered for deferred action under the new process.

What do background checks involve?

Background checks involve checking biographic and biometric information provided by the individuals against a variety of databases maintained by DHS and other federal government agencies.

=What documentation will be sufficient to demonstrate that an individual came to the United States before the age of 16?

Documentation sufficient for an individual to demonstrate that he or she came to the United States before the age of 16 includes, but is not limited to: financial records, medical records, school records, employment records, and military records.

=What documentation will be sufficient to demonstrate that an individual has resided in the United States for a least five years preceding June 15, 2012?

Documentation sufficient for an individual to demonstrate that he or she has resided in the United States for at five years immediately preceding June 15, 2012 includes, but is not limited to: financial records, medical records, school records, employment records, and military records.

=What documentation will be sufficient to demonstrate that an individual was physically present in the United States as of June 15, 2012?

Documentation sufficient for an individual to demonstrate that he or she was physically present on June 15, 2012, the date the memorandum was issued, includes, but is not limited to: financial records, medical records, school records, employment records, and military records.

=What documentation will be sufficient to demonstrate that an individual is currently in school, has graduated from high school, or has obtained a general education development certificate (GED)?

Documentation sufficient for an individual to demonstrate that he or she is currently in school, has graduated from high school, or has obtained a GED certificate includes, but is not limited to: diplomas, GED certificates, report cards, and school transcripts.

=What documentation will be sufficient to demonstrate that an individual is an honorably discharged veteran of the Coast Guard or Armed Forces of the United States?

Documentation sufficient for an individual to demonstrate that he or she is an honorably discharged veteran of the Coast Guard or Armed Forces of the United States includes, but is not limited to: report of separation forms, military personnel records, and military health records.

What steps will USCIS and ICE take to prevent fraud in the new processes?

An individual who knowingly makes a misrepresentation to USCIS or ICE, or knowingly fails to disclose facts to USCIS or ICE, in an effort to receive deferred action or work authorization in this new process will be treated as an immigration enforcement priority to the fullest extent permitted by law, subjecting the individual to criminal prosecution and/or removal from the United States.

Are individuals with a 1. conviction for a felony offense, 2. a significant misdemeanor offense, or 3. multiple misdemeanors eligible for an exercise of prosecutorial discretion under this new process?

No. Individuals who have been convicted of a felony offense, a significant misdemeanor offense, or three or more other misdemeanor offenses not occurring on the same date and not arising out of the same act, omission, or scheme of misconduct are not eligible to be considered for deferred action under the new process.

What offenses qualify as a felony?

A felony is a federal, state, or local criminal offense punishable by imprisonment for a term exceeding one year.

What offenses qualify as a “significant misdemeanor”?

A significant misdemeanor is a federal, state, or local criminal offense punishable by no more than one year of imprisonment or even no imprisonment that involves: violence, threats, or assault, including domestic violence; sexual abuse or exploitation; burglary, larceny, or fraud; driving under the influence of alcohol or drugs; obstruction of justice or bribery; unlawful flight from arrest, prosecution, or the scene of an accident; unlawful possession or use of a firearm; drug distribution or trafficking; or unlawful possession of drugs.

How many non-significant misdemeanors constitute “multiple misdemeanors” making an individual ineligible for an exercise of prosecutorial discretion under this new process?

An individual who is not convicted of a significant misdemeanor but is convicted of three or more other misdemeanors not occurring on the same day and not arising out of the same act, omission, or scheme of misconduct is not eligible to be considered for deferred action under this new process.

What qualifies as a national security or public safety threat?

If the background check or other information uncovered during the review of an individual’s request for deferred action indicates that the individual’s presence in the United States threatens public safety or national security, he or she will be ineligible for an exercise of prosecutorial discretion. Indicia that an individual poses such a threat include, but are not limited to, gang membership, participation in criminal activities, or participation in activities that threaten the United States.

How will ICE and USCIS handle cases involving individuals who do not satisfy the eligibility criteria under this new process but may be eligible for an exercise of prosecutorial discretion under the June 2011 Prosecutorial Discretion Memoranda?

If an individual has a final order of removal and USCIS determines that he or she does not satisfy the eligibility criteria, then it will reject the individual’s request for deferred action. That individual may then request an exercise of prosecutorial discretion under the ICE June 2011 Prosecutorial Discretion Memoranda through any of the established channels at ICE, including through a request to the ICE Office of the Public Advocate or to the local Field Office Director. USCIS will not consider requests for review under the ICE June 2011 Prosecutorial Discretion Memoranda.

If an individual is currently in removal proceedings and ICE determines that he or she does not satisfy the eligibility criteria for deferred action under this process, it will then consider whether the individual is otherwise eligible for an exercise of prosecutorial discretion under its current practices for assessing eligibility under the June 2011 Prosecutorial Discretion Memoranda.

Will there be supervisory review of decisions by ICE and USCIS under this process?

Yes. Both ICE and USCIS will develop protocols for supervisory review as part of their implementation of the new process.

Can individuals appeal a denial by ICE or USCIS of their request for an exercise of prosecutorial discretion under the new process?

No. Individuals may not appeal a denial by ICE or USCIS of their request for an exercise of prosecutorial discretion. However, ICE and USCIS will develop protocols for supervisory review as part of their implementation of the new process. Although there is no right for appeal, individuals in removal proceedings who believe their cases were not correctly handled may contact the ICE Office of the Public Advocate either by phone at 1-888-351-4024 or by e-mail at EROPublicAdvocate@ice.dhs.gov.

Will dependents and other immediate relatives of individuals who receive deferred action pursuant to this process also be eligible to receive deferred action?

No. The new process is available only to those who satisfy the eligibility criteria. As a result, the immediate relatives, including dependents, of individuals who receive deferred action pursuant to this process are not eligible to apply for deferred action as part of this process unless they independently satisfy the eligibility criteria.

If an individual’s request to USCIS for deferred action is denied, will he or she be placed in removal proceedings?

For individuals whose requests for deferred action are denied by USCIS, USCIS will apply its existing Notice to Appear guidance governing USCIS’s referral of cases to ICE and issuance of notices to appear. Under this guidance, individuals whose requests are denied under this process will be referred to ICE if they have a criminal conviction or there is a finding of fraud in their request.

Should individuals who are not in removal proceedings but believe themselves to be eligible for an exercise of deferred action under this process seek to place themselves into removal proceedings through encounters with ICE or CBP?

No. Individuals who are not in removal proceedings but believe that they satisfy the eligibility criteria should submit their request for review of their case to USCIS under the procedures that USCIS will implement.

This process is not yet in effect and requests should not be submitted at this time. Beginning June 18, individuals may call the USCIS hotline at 1-800-375-5283, from 8 a.m. to 8 p.m., with questions or to request more information on the new process. The hotline offers assistance in English and Spanish. Individuals seeking more information on the new process should visit USCIS’ s website (at http://www.uscis.gov).

If I receive deferred action through this process, will I be able to travel outside the United States?

USCIS is exploring this issue and will resolve it in the coming weeks as part of its implementation plan.

Will there be any exceptions to the requirement that an individual must have resided in the United States for a least five years preceding June 15, 2012?

An individual must demonstrate that he or she has resided in the United States for a least five years preceding June 15, 2012. Brief and innocent absences undertaken for humanitarian purposes will not violate this requirement.

What should I do if I am eligible under this process and have been issued an ICE detainer following an arrest by a state or local law enforcement officer?

If you meet the eligibility criteria and have been served a detainer, you should immediately contact either the Law Enforcement Support Center’s hotline at 1-855-448-6903 (staffed 24 hours a day, 7 days a week) or the ICE Office of the Public Advocate either through the Office’s hotline at 1-888-351-4024 (staffed 9 am – 5 pm, Monday – Friday) or by e-mail at EROPublicAdvocate@ice.dhs.gov.

Does deferred action provide individuals with a path to citizenship or permanent legal status?

No. A grant of deferred action is a form of prosecutorial discretion that does not confer a path to citizenship or lawful permanent resident status. Only the Congress, acting through its legislative authority, can confer these rights.

Why isn’t DHS allowing other individuals to request deferred action under this process?

As a general matter, young people who, through no fault of their own, were brought to this country as children lacked the intent to violate the law and our ongoing review of pending removal cases is already offering administrative closure to many of them. However, additional measures are necessary to ensure that our enforcement resources are not expended on these low priority cases but are instead appropriately focused on people who meet our enforcement priorities.

Does this Administration remain committed to comprehensive immigration reform?

Yes. The Administration has consistently pressed for passage of comprehensive immigration reform, including the DREAM Act, because the President believes these steps are critical to building a 21st century immigration system that meets our nation’s economic and security needs.

Is passage of the DREAM Act still necessary in light of the new process?

Yes. As the President has stated, individuals who would qualify for the DREAM Act deserve certainty about their status, and this new process does not provide that certainty. Only the Congress, acting through its legislative authority, can confer the certainty that comes with a pathway to permanent lawful status.

How can I get more information on the new process?

Individuals seeking more information on the new process should visit ICE’s website (at http://www.ice.gov), USCIS’ s website (at http://www.uscis.gov), or DHS’s website (at http://www.dhs.gov). Beginning June 18, individuals can also call ICE’s hotline (at 1-888-351-4024) or USCIS’ s hotline (at 1-800-375-5283) during business hours with questions or to request more information on the new process.

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Form and Filing Fee

Information is still to come, however, in the case of deferred action for widows of U.S. citizens

granted in 2009, the USCIS used the I-360 Form with fee. We do not know which form will be

used for Dreamers. You may want to download the G-325A form from the USCIS website and

fill that out, since that form has the last 5 years residences listed, and may be required when

the procedure is announced. This will help you get ready with this basic data.

Birth Record

Although the current guidance does not reference this, a birth certificate is likely to be required

to establish the applicant’s legal name, date of birth and place of birth, as well as nationality.

Because this benefit relies on the person’s age being between 15 and 30, we think a birth

certificate will be required. If you do not have a birth certificate, you may be able to submit

secondary evidence along with a letter of no record from the registrar in your country.

Information on the birth certificates from various countries can be found at the State

Department under reciprocity tables: http://travel.state.gov/visa/fees/fees_3272.html

Although it is possible, it is unlikely that a passport alone will be enough. We will see once the

processing guidance is issued, but there is a historic preference by USCIS for birth certificates.

Passports are seen as unreliable, and often containing information that does not match the

birth certificate. USCIS does not allow applicants for adjustment of status to permanent

residence to submit just a passport, for example, requiring a birth certificate or satisfactory

secondary evidence as outlined in the State Department’s guide. If you are wondering whether

to go through the trouble of applying for a birth certificate now when you don’t know if it will

be required, then ask yourself, will you be happier prepared with a birth certificate you don’t

have to submit, or happier with no birth certificate that you are required to submit?

Residence and Physical Presence

Applicants will need to show documentation of U.S. residence or physical presence at key

points in time. These are 1) the date the person came to the U.S.; 2) the 5 year period between

June 15, 2007 and June 15, 2012 (5 years residence); and 3) evidence of the person’s physical

presence in the U.S. on June 15, 2012. To show this, documentation such as financial records,

medical records, school records, employment records and military records are specifically

mentioned.

Continuous Residence in the U.S. between June 15, 2007 and June 15, 2012

To prove continuous residence in the U.S. between June 15, 2007 and June 15, 2012, the 5

years required by the deferred action announcement, consider submitting some of the

following evidence:

• Employment records (from past employers);

• School records (from the school or the school district which maintains records);

• Rent or utility bills (from the landlord or the utility company);

• Hospital or medical records (from the hospital or the medical provider);

• Immunization records;

• Attestations by churches, unions or other organizations (obtain letters, notarized if

possible, attesting to the applicant’s residence, with specific dates that the author of the

letter can attest to from personal experience or from church or union records);

• Money order receipts;

• Passport entries;

• Birth certificates of applicant’s children born in the United States;

• Medical, school and other records of applicant’s children born in the United States;

• Bank account statements;

• Insurance statements or records, including automotive, life, health, and other insurance;

• Social Security records;

• Census records (obtain through census.gov)

• Selective Service Registration (obtain through sss.gov)

• Automobile license receipts, title, or vehicle registration;

• Driver’s license or ID records from state and local governments;

• Deeds, mortgages, contracts to which the applicant has been a party (including cell

phone contracts and bills)

• Tax receipts and filings (obtain from IRS or state/local taxing authority)

• Any other relevant documentation you can think of;

• Affidavits from individuals who know the applicant and who can attest to the applicant’s

residence in the U.S. The individual making the affidavit must state his/her name,

address, how he/she knows the applicant, how long he/she has known the applicant,

and how he/she knows about the applicant’s continued residence in the United States

since the date of entry, or for periods relevant to the 5 year window, or both. The

affidavit does not need to be in a particular format, and can take the form of a letter,

but should be signed before a notary public (which can be obtained at a law office or at

your local bank). Do not allow notaries to give you immigration legal advice!!!

How many documents are recommended? Good question. This will depend on the guidance

issued, and to be honest, the adjudicator looking at the application. Based on many years of

experience, we believe that a combination of documents spanning the 5 year period will be

sufficient if it covers each year, and preferably includes a few different kinds of documentation

in each year. It is highly unlikely that proof of each day here will be required, but it is possible

that some adjudicators could require a document from each month. If you are missing some

months here and there, will you be denied? Probably not. Adjudicators need to look at the

“totality of the evidence” and view this from the perspective of the adjudicatory standard of

“preponderance of the evidence”. That means, based on the evidence, is it more likely than not

that the person had the required residence? So, because we have this preponderance standard

in immigration cases, it lends to some flexibility with the evidence submitted in a given case.

Don’t be afraid if you are missing some periods, but also don’t be lax and fail to submit all the

evidence that you have either.

Absences

If the applicant had any absence from the U.S. during the relevant period, be prepared to show

that it was “brief, casual, and innocent,” which is a temporary trip abroad required by

emergency or extenuating circumstances outside the applicant’s control. Such an absence can

be supported by documentary evidence including the following:

• Plane or other transportation tickets or itinerary showing travel dates;

• Passport entries;

• Hotel receipts showing dates the applicant was abroad;

• Evidence of the purpose of the travel abroad (e.g. attended a wedding or funeral);

• Copy of any advance parole travel document;

• Affidavits of persons who know the applicant and the reasons why the applicant

traveled out of the U.S., and for what period of time;

• Any other evidence that could support the brief, casual, and innocent character of the

absence.

Entry into the United States Before Age 16

To prove entry into the United States before age 16, we suggest that applicants begin collecting

the following:

If the applicant entered the U.S. with inspection, consider submitting copies of:

• The visa and identification pages from the passport;

• The most recent Form I-94 with admission stamps indicating the port of entry, date of

entry, nonimmigrant classification, and ending date of authorized stay;

• The most recent Form I-539 approval notice (Form I-797), if applicable, showing an

extension or change of status;

• Copies of all Forms I-20 showing status as an F-1 student or F-2 student spouse (front

and back); and

• Copies of all Forms IAP-66 or DS-2019 showing status as a J-1 exchange visitor (all pages)

• If you lack this documentation for some reason (loss, theft, etc.), then consider

preparing an affidavit similar to that below, and combine it with documents supporting

the physical presence in the U.S. around the time of your entry. What is important to

know is that the announcement simply says you need to show you entered before age

16, so if you entered at age 8, for example, documents showing your presence here at

age 10 or 11, or even 15, should be enough. You may also consider filing an I-102 Form

with USCIS, which is an application for a replacement I-94 card. This may not be

absolutely required, but it could be helpful to prove an old entry.

If the applicant entered the U.S. without inspection, consider submitting sworn written

affidavits from individuals who knew of the entry that discuss all of the following:

• When the person departed the home country;

• A thorough description of the applicant’s entire journey from the home country to the

United States;

• For each country that the applicant entered during the journey to the United States, the

following information – When the applicant arrived there; How the applicant got there

(method of transportation); What the applicant did while there; When the applicant

departed;

• Exactly where the applicant entered the United States;

• How the applicant entered the United States (walk, drive, airport, etc.)

In addition, for both of these circumstances, evidence similar to that required for the

continuous residence requirement outlined above should be submitted for the time period

surrounding the initial entry to the U.S., or at least covering the period before the person

turned 16. For example, if documentary evidence of residence is hard to come by for the year

in which the person came to the U.S. at the age of 12, consider submitting evidence that the

person was here at age 14 and 15, which is still before the age of 16. This tends to show the

person entered at least before the age of 16.

Physical Presence on June 15, 2012

How can one prove they were present in the United States on June 15, 2012? There are a

number of ways to show this. One certain way is to show documentation of an event, such as a

medical appointment, on that day. That is unlikely for a vast majority of applicants. Instead,

what is likely the best evidence is additional residence documentation from around the time of

June 15, 2012, tending to show the person was in fact here in the country and not abroad.

We have past experience with physical presence requirements on a particular day. In fact, the

LIFE Act, which was an extension of the 245(i) program, required applicants to prove they were

physically present on December 21, 2000 in order to benefit from a program that required a

filing before April 30, 2001. In these cases, we found that residence documentation around the

time of December 20, 2000 was sufficient for the LIFE Act, even though it did not absolutely

prove the person was here on that particular day. The regulations covering the LIFE Act stated,

“If no one document establishes the alien’s physical presence on December 21, 2000, he or she

may submit several documents establishing his or her physical presence in the United States

prior to, and after December 21, 2000.” 8 CFR 245.10(n) Some examples of things issued

before the cutoff were:

• a state driver’s license;

• a state identification card;

• county or municipal hospital record;

• public college or public school transcript;

• income tax records;

• school records;

• rental receipts;

• utility bill receipts;

• any other dated receipts;

• personal checks written by the applicant bearing a bank cancellation stamp;

• employment records, including pay stubs;

• credit card statements showing dates of purchase, payment, or other transaction

• If the applicant established that a family unit was in existence and cohabitating in the

United States, documents evidencing the presence of another member of the same

family unit.

So, consider submitting something like that issued before June 15, 2012, and then some other

documents after that date.

Recall the discussion above about “preponderance of the evidence.” You just need to show

that it is more likely than not that you were here in the U.S. on that day, not that you were

beyond a reasonable doubt here on that day. Flexibility will probably be given for this showing,

and I would suggest just making sure that some public document covers the month of June

2012.

Education Documentation

Applicants will need to show documentation that they are in school now, or have graduated

from U.S. high school or have a general education development (GED) certificate. The best

evidence for graduates will be a high school diploma. For those with a GED, it will be the GED

certificate. For those who are still in school, transcripts and report cards will be good evidence.

Practically speaking, you should consider submitting as much evidence as possible, so those

with a high school diploma should also submit transcripts and report cards if available, for

example.

Criminal History

Applicants must show that they have not been convicted of certain crimes. As part of the

application process, applicants will be fingerprinted and photographed as part of a “biometrics”

process. The fingerprints will be run through the federal databases, which also contain local

arrest and conviction information. Here are the criminal convictions that will make an applicant

ineligible:

• Felony – whether a crime is a felony is determined by federal, state or local law. It is a

felony if the maximum sentence is over one year, even if the person did not receive that

much time, or any time in jail at all.

• Significant Misdemeanor – a misdemeanor is a crime that is not a felony because it is

punishable by a maximum of one year or less. It becomes a significant misdemeanor

under the deferred action guidance if it involves “violence, threats, or assault, including

domestic violence; sexual abuse or exploitation; burglary, larceny, or fraud; driving

under the influence of alcohol or drugs; obstruction of justice or bribery; unlawful flight

from arrest, flight from prosecution, or fleeing the scene of an accident; unlawful

possession or use of a firearm; drug distribution or trafficking, or unlawful possession of

drugs.” You should seek legal counsel if you have a conviction that might fit any of

these categories.

• Multiple Non-Significant Misdemeanors – this means crimes that are not felonies or

significant misdemeanors, but which are 3 in number or more. It appears that if the

misdemeanors were committed at the same time, they may just count as one. For

example, a person convicted of disorderly conduct and resisting arrest on one day, and

then disorderly conduct on another day, may be still eligible, since the first two were

committed on one day and therefore may be able to count as only one.

It is important for those applicants with criminal convictions to seek legal counsel before

filing any application, as a denied application under the criminal grounds may result in the

applicant being placed in deportation proceedings.

Deferred Action Grant

After the process is announced and applicants file applications for deferred action, a Notice of

Action, Form I-797, will likely be issued providing the person with 2 years of deferred action

from the date of the notice. It is unclear whether 30 year olds will be approved for 2 years, or

just until they turn 31.

Employment Authorization Document

Upon issuance of the I-797 Form authorizing Deferred Action, applicants will be able to apply

for an Employment Authorization Document (EAD), using Form I-765 in all likelihood. The

appropriate classification for Form I-765 filed on the basis of a deferred action grant is (C)(14)

pursuant to 8 CFR 274a.12(c)(14). It is anticipated that applicants will be able to apply for the I-

765 at any time after the grant (but prior to the expiration) of deferred action. In the case of

deferred action for widow(er)s, granted in 2009, USCIS required proof of economic necessity.

This may be shown by a budget and documentation of income and expenses. The EAD should

likely be issued for a maximum of 2 years, but not exceeding the deferred action grant. Since it

takes about 60-90 days to obtain an EAD, the EAD cards under this policy will all be less than 2

years in duration, but more than a year.

Effect of Grant of Deferred Action

The grant of deferred action by USCIS does not confer or alter any immigration status. It does

not convey or imply any waivers of inadmissibility that may exist. A grant of deferred action

also does not eliminate any period of prior unlawful presence. However, periods of time in

deferred action do not count as unlawful presence for the purposes of sections 212(a)(9)(B) and

(C) of the INA (referred to as the 3/10 and indefinite unlawful presence bars). Any period of

time in deferred action qualifies as a period of stay authorized by the Secretary of Homeland

Security for those purposes.

Therefore, a deferred action applicant who is 18 years and 3 months old when the deferred

action is granted cannot avoid the 3 months of unlawful presence gathered between the ages

of 18 and 18 and 3 months, but once the deferred action is granted there is no longer any

accumulation of unlawful presence. That could prove useful to someone who may be eligible

to consular process, since they may not be subject to the bars in this circumstance. Analysis of

unlawful presence periods is complicated, and should be undertaken with the advice of

competent immigration counsel.

Who Can Help?

Make sure not to use the services of a “notario” who cannot practice immigration law. To

determine whether the person assisting you is knowledgeable and licensed, consider checking

whether they are a member of the American Immigration Lawyers Association (AILA) by going

to http://www.aila.org to check. AILA also has a lawyer referral service, http://www.ailalawyer.com, which is

a free service for finding a qualified lawyer. Lawyers on that service must attest that they have

been a member of AILA for at least 2 years, have taken a number of continuing legal education

courses, have malpractice liability insurance, and are a member of a state bar and authorized to

practice law.

What Can I Do Now?

You can’t apply yet, unless you are in removal proceedings. But you can get prepared by

collecting all the documentation relating to your eligibility and getting good representation to

prepare and file the application once the procedure is announced.