FAQ on President Obama’s Announcement of Deferred Action for Immigrant Youth

On Friday, June 15, 2012, the U.S. Department of Homeland Security (DHS) and its sub-agencies, Immigration & Customs Enforcement (ICE), U.S. Citizenship & Immigration Services (USCIS) and U.S. Customs & Border Protection (CBP), announced a new policy of deferred action for immigrant youth.

In a nutshell, the government has chosen to focus its enforcement resources away from individuals who were brought to the U.S. as children and focus those resources elsewhere.

Like most new immigration policies, this has generated several questions from the general public, those who might qualify for benefits and attorneys.

Isn’t this just amnesty?

This is not amnesty, it is an enforcement priority. DHS made an informed decision about which classes of immigrants to pursue for deportation based on the agency’s limited resources. It should be made clear that this is deferred action.

In other words, the government has decided to defer taking any deportation action against this specific class of immigrants. There is no path to lawful permanent residency, much less citizenship for this group. Beneficiaries cannot file immigrant petitions for their family members, and if they become criminals, they will be subject to removal from the U.S.

What is deferred action?

Deferred action is nothing new. It is a form of administrative relief from removal, in other words it is granted by DHS, a federal agency. It allows someone who is not a U.S. citizen to avoid deportation and remain in the U.S. temporarily. While here, they are able to apply for a work permit valid for the time he or she has deferred action. Deferred action is granted on a case-by-case basis, and is highly discretionary. It provides no path to lawful permanent resident status or U.S. citizenship.

Who is eligible for deferred action under the new policy?

According to the June 15th memo, qualifying individuals must:

(1) Have come to the U.S. under the age of 16;
(2) Have continuously resided in the U.S. for at least five (5) years preceding June 15, 2012, the date the announcement was made;
(3) Currently be in school, have graduated from a U.S. high school, have obtained a G.E.D., or are honorably discharged veterans of the Coast Guard or U.S. armed forces;
(4) Have not been convicted of a felony, a significant public misdemeanor, multiple misdemeanor offenses, or otherwise pose a threat to national security or public safety; and
(5) Not be above the age of 30.

This is a very narrow class of individuals. All applicants will have to complete a background check and must be 15 years of age if they are not already subject to a final order of removal.

How does someone apply under the new policy?

The short answer is that we do not know at this time. DHS has indicated that further guidance about application procedures will be available within 60 days.

How is this new policy different from the DREAM Act?

The DREAM Act is a piece of legislation that has been before Congress on more than one occasion going back several years. The DREAM Act would offer qualifying individuals a path to citizenship as long as they entered the U.S. as a minor and want to continue with their studies or military service. Simply stated, the DREAM Act is a more permanent solution and goes much further than the June 15th memo.

As a result, we would continue to advocate for the passage of the DREAM Act and comprehensive immigration reform in general.

Is this new policy an executive order?

No. While much of the media referred to it as an executive order at first, the June 15th announcement is an enforcement priority, or a change in agency policy. An executive order carries with it the full force of law. This policy change is really more guidance than anything else for DHS employees who are charged with carrying out immigration enforcement. The decision can be changed or reversed at any time. It is only a temporary measure, and highlights the importance of pursuing more permanent solutions.

What are the fees associated with the new deferred action process?

We do not know what the fees are in association with applying for deferred action. Currently, the cost of a work permit application is $380.00. It is probable this will be part of the future application fees, but this is not known for sure. It is also possible there will be a fee waiver process. We should know more within the next 60 days.

How long will deferred action last?

The deferred action announced on June 15th will last for two (2) years. It appears that as long as the policy is in place, individuals will be able to renew the deferred action and their work permits every two years as long as they still qualify.

If someone is granted deferred action, will he or she be eligible to work in the U.S.?

Yes. Under existing regulations, those who are granted deferred action do qualify to apply for a work permit.

If an individual renews deferred action, will he or she need to reapply for employment authorization?

Yes.

Will individuals with deferred action be able to obtain a driver’s licenses?

The decision of who does and does not qualify for a driver’s license is a state-by-state issue. It is certainly possible that many states will allow those who have been granted deferred action to apply for and receive a driver’s license. It is also possible that some states will not. Unfortunately, we will need to wait and see.

Will qualifying individuals be eligible for in-state tuition for colleges and universities?

Similar to driver’s licenses, the issue of in-state tuition for colleges and universities is going to vary from state to state. Several states already allow individuals living within their borders to pay in-state tuition regardless of their immigration status. Other states have been more hostile.

Will applicants for deferred action be subject to background checks?

Yes. All applicants for deferred action will be subject to background checks. The checks will involve checking biographic and biometric information provided by the applicants against a variety of databases maintained by DHS and other government agencies.

What can an individual do now to begin preparing to apply for deferred action?

The most advisable thing to do right now is to begin gathering any and all documentation that proves you qualify.  It would also be advisable to watch the news for any updates and to begin seeking qualified legal help for further advise or if there are any questions about eligibility.

Avoid notarios at all costs.

What documentation will be sufficient to demonstrate that an applicant qualifies for deferred action?

Diplomas, GED certificates, financial records, immigration records, medical records, school records, employment records, military records, photos and notarized affidavits from friends and family members should all help in establishing eligibility.

Will dependents and immediate relatives of individuals receiving deferred action also be eligible?

It depends. Each individual applicant must qualify on his or her own merits. Applicants who are approved for deferred action may not extend their status to any relatives who do not qualify on their own.

Will those with deferred action be able to travel outside of the U.S.?

As of now, there is no information from the government about this issue with the exception of an assurance that DHS is looking into it and will provide information on the subject when further information is published sometime in the next 60 days.

Where can individuals get more information?

There are a number of great resources discussing the June 15th announcement all over the internet. Here is a list of some of the most helpful:

DHS memo announcing the new policy
DHS Q&A on the new policy
National Immigration Project of the National Lawyers Guild
National Immigration Law Center
Immigration & Customs Enforcement
U.S. Citizenship & Immigration Services
ICE Office of the Public Advocate

How do individuals who are already in deportation proceedings obtain deferred action?

For individuals who are in removal proceedings, ICE will announce the process for submitting a request to review their case. The announcement is expected to come in the next few weeks. For individuals who are already in removal proceedings and have already been identified by ICE as meeting the eligibility requirements, ICE will begin offering deferred action immediately.

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

Yes. If the individual meets the criteria of the policy, then he or she can apply for and receive deferred action even if subject to a final order of removal. Even so, the exact procedures for applying are not yet available.

If an individual is not in deportation proceedings, how will he or she go about obtaining deferred action?

USCIS is establishing its policies and procedures for the filing of affirmative applications for deferred action. Every indication is that they will share this information with the public within 60 days.

If an individual is denied deferred action, will he or she be placed in deportation proceedings?

DHS has indicated that it will continue to apply its existing enforcement priorities to those who apply for, but fail to receive, deferred action. In other words, sometimes a denial will result in deportation proceedings and sometimes it will not. The analysis will be made on a case-by-case basis.

If an individual who believes he or she qualifies is about to be deported by ICE what steps should be taken to avoid deportation?

For individuals who are about to be removed, but who appear to qualify and can demonstrate eligibility, the Law Enforcement Support Center’s hotline (1-855-448-6903) or the ICE Office of the Public Advocate (1-888-351-4024) or EROPublicAdvocate@ice.dhs.gov) should be contacted as soon as possible.

Will DHS employees responsible for implementation of this new policy be receiving special training?

According to DHS, the answer is yes. However, the exact nature of the training has not been specified.

What about individuals who dropped out of high school?

There have been some indications from the government that those who are currently enrolled in high school, GED prep and college programs may qualify.  While this will not be known with certainty until DHS publishes the application procedures, this only serves to highlight the importance of continued education.  If any individual dropped out of high school, it would be advisable to get back on track academically by going back to school or working on the GED as soon as possible. 
What offenses are considered felonies?

Per ICE’s definition, “a felony is a federal, state, or local criminal offense punishable by imprisonment for a term exceeding one year.”

What is a “significant misdemeanor?”

Perhaps the better question would be what does not constitute a significant misdemeanor.

Per ICE’s definition, “[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, prostitution, or leaving the scene of an accident; unlawful possession or use of a firearm; drug distribution or trafficking; or unlawful possession of drugs.”

It is unclear if there will be any exceptions.

How many offenses constitute “multiple misdemeanors?”

While more guidance will hopefully clear this issue up, the magic number for now seems to be set at three (3) or more misdemeanors not arising out of the same act.

What qualifies as a national security or public safety threat?

According to a DHS memo, this would seem to include gang membership, participation in criminal activities, or participation in activities that threaten the United States. Hopefully there will be more clarification within the next 60 days.

Can individuals appeal a denial of deferred action?

There are no appellate options. DHS has indicated that supervisors will review the decisions of the adjudicators.

Who is qualified to help an applicant request deferred action?

Only attorneys licensed in a U.S. state or territory or representatives accredited by the Board of Immigration Appeals are legally authorized to represent individuals in proceedings before any U.S. immigration agency. It is very common for scam artists, notarios and other fraudsters to ramp up their efforts in the light of new policy announcements.

Remember that no application process is available today. When the application process becomes available, seek out help from an attorney or accredited representative and stay away from notarios.

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