Last week the Director of the USCIS announced that the USCIS will start accepting applications for Deferred Action and Employment Authorization from August 15.
Our office Lawyers were on a telephone conference with the USCIS last week, during which the process, requirements, fees and other important issues were clarified. This morning the USCIS release the following chart that outlines the process in a nutshell.
Remember there are no Appeals or Motions to Re Open in this process. If you make a mistake, you are done. It is important to do the research, obtain any records needed and consult an experienced lawyer before filing.
AILA has provided this 8 point summary following DHS’ Announcement on Deferred Action:
1. In a change from the prior announcement, people currently in removal proceedings will use the USCIS process when it is implemented on August 15, 2012, rather than go through ICE. Only individuals in detention will go through ICE to make a deferred action request.
2. Information provided as part of the deferred action request process is protected from disclosure to ICE or CBP for purposes of removal proceedings unless the requestor meets the criteria of USCIS’ November 2011 NTA memo.
On August 3, 2012, USCIS held a public engagement to discuss further updates on DACA and implementation process. While application process is not yet in effect, USCIS will start accepting applications on August 15, 2012. Interestingly, USCIS has not yet posted the actual form that will be used to apply for DACA. USCIS pointed out that the applicable form and instructions will be made available on August 15, 2012.
Deferred Action Requests will be mailed at the same time with Form I-765, Employment Authorization Application and with a fee of $465. In limited circumstances, you can qualify for a fee exemption.
USCIS has clarified the following important points concerning DACA process:
Today, in Washington, the Department of Homeland Security provided additional information on the deferred action for childhood arrivals process during a national media call in preparation for the August 15 implementation date.
Back on June 15, Secretary of Homeland Security Janet Napolitano announced that certain young people who came to the United States as children and meet other key guidelines may be eligible, on a case-by-case basis, to receive deferred action. U.S. Citizenship and Immigration Services (USCIS) is finalizing a process by which potentially eligible individuals may request consideration of deferred action for childhood arrivals.
USCIS expects to make all forms, instructions, and additional information relevant to the deferred action for childhood arrivals process available on August 15, 2012. USCIS will then immediately begin accepting requests for consideration of deferred action for childhood arrivals.
A great Analysis by the Immigration Policy Center released. This analysis breaks down the population potentially eligible for deferred action by nationality and age at the national and state level, as well as the congressional district level.
The deferred action initiative, announced by Homeland Security Secretary Janet Napolitano on June 15, offers a two-year, renewable reprieve from deportation to unauthorized immigrants who are under the age of 31; entered the United States before age 16; have lived continuously in the country for at least five years; have not been convicted of a felony, a “significant” misdemeanor, or three other misdemeanors; and are currently in school, graduated from high school, earned a GED, or served in the military.
Immigrants who meet these criteria are commonly referred to as “DREAMers” because they comprise most (though not all) of the individuals who meet the general requirements of the Development, Relief, and Education for Alien Minors (DREAM) Act.
Yesterday, July 24, 2012, USCIS San Diego Field Office held a meeting with attorneys, local community based organizations, local governmental organizations and other interested agencies to address the implementation of Deferred Action. Paul Pierre, District Director of San Diego District Office, ICE and CBP representatives were present at the meeting. Attorney Ekaterina Powell from our office was also present at the meeting and her summary is provided below.
During the meeting, DHS provided updates on the implementation of Deferred Action, which is now referred to as DACA (Deferred Action for Childhood Arrivals).
DHS emphasized that DACA is discretionary DHS decision not to pursue enforcement against a person for a specific period. A grant of deferred action does not confer lawful immigration status or alter an individual’s existing immigration status. DACA is not the Dream Act, and the use of deferred action provides no pathway to citizenship or permanent residency. Only the Congress may confer these rights.
DHS has announced that it will likely issue guidance on the DACA application process on August 1, 2012 and will start accepting petitions August 15, 2012. Until that time, individuals who want to apply for DACA should gather the required documentation to demonstrate their eligibility.
What Documents may be required?
Documentation of presence and continuous residence may include, but is not limited to, financial records, medical records, school records, employment records, and military records. It is unclear what level of documentation will be required. It is also unclear whether in absence of required documentation USCIS will accept alternative forms of documentation, such as affidavits from individuals who could attest to physical presence or continuous presence requirements. DHS should issue additional guidance about acceptable documentation in the coming weeks.
While DHS continues its efforts to increase staffing of the Service Centers to accommodate DACA filings, it is difficult at this point to predict processing times of the requests. DHS has stated that processing times will be determined once the application process begins depending on the number of applicants. DHS stated that it is likely that the process will take 6-12 months.
While it is still unclear whether there will be a separate fee for DACA request, DHS has announced that it will not exempt DACA applicants from Work Authorization Application fee and biometrics fee, which amount to $465 per applicant.
After an application is filed, DHS will capture biometrics of DACA applicant. If the applicant does not provide the required documentation to demonstrate eligibility, USCIS will use its established process of issuing Requests for Evidence. DHS has informed the public that certain applicants selected randomly as well as applicants meeting certain fraud profile or criminal profile will be referred to a local CIS office for an interview.
Although the meeting with DHS has clarified some of the important concerns of the public, it left unanswered many important questions regarding the implementation of DACA.
Specifically, it is still unclear whether individuals granted deferred action will be able to travel abroad. Even if overseas travel is permitted, it may not be in the best interests of the DACA applicants. Although unlawful presence will not accrue during any deferred action period, prior periods of unlawful presence may render individuals who leave the Untied States inadmissible for 3 or 10 years under existing law. Thus, it is critical for DACA applicants to first consult an immigration attorney before leaving the U.S. even if travel is permitted.
Major Concerns
Another issue that keeps many individuals from considering DACA is fear for themselves, if they are denied deferred action, and fear for their family members. It is not clear at this point whether the information regarding legal status of applicants’ parents will be taken and whether this information will be shared with Immigration and Customs Enforcement. Immigration Advocacy groups are currently in the process of discussing confidentiality concerns with DHS and advocating for guidance prohibiting information provided from being used to initiate or continue to pursue removal proceedings.
Before DHS issues guidance on the application process, individuals who would like to apply for Deferred Action should gather as much documentation as possible to demonstrate eligibility.
If you believe that you meet the eligibility provisions of DACA, feel free to contact our office for a consultation and preliminary review of your records. We are now forming an interest list.
According to the Center for American Progress the Deferred Action Order will be good for the economy, here is Why?
The policy makes good economic sense in addition to the self-evident humanitarian reasons for letting undocumented youth remain in the country, work, and live with legal status. The following are the top five ways the president’s announcement will benefit our economy.
This issue of criminal offenses and who may be excluded because of this from the Deferred Action changes, is a subject of concern for many people. The American Immigration Council issued a Guide on the subject and you can see a discussion below on this subject.
Individuals are not eligible for deferred action if they have been convicted of a felony offense, a significant misdemeanor offense, multiple misdemeanor offenses, or otherwise pose a threat to national security or public safety. The FAQ issued by DHS provides important information regarding how these categories will be defined.
A “felony offense” includes any federal, state or local criminal offense punishable by imprisonment for more than one year. Thus, some state misdemeanor offenses may be characterized as felonies for purposes of the new memorandum.
This information may be interesting to people and advocates who are planning on filing for benefits under this program in the near future (hopefully mid August), this is regarding a call we got from Immigration and Customs Enforcement (ICE) yesterday. It seems that ICE HQ in Washington are pre-selecting candidates for Deferred action, and are doing so nationwide.
The message from the ICE official was clear, your client was pre selected for Deferred Action under the new order and you will be contacted in the next few weeks with information on how to proceed. We have several clients with cases we managed to close before the Court (all for DREAMERS), and the clients will be eligible for this benefit. With all the confusion on how and when to file, it seems that the system is also working from within to create a list of clearly qualified applicants, I am curious to know if any other practitioners got the same call/contact?
So what do we do now? No one can file anything, but there are things applicants could do in the next few months.
Very Important information: DREAMers NOT currently in proceedings ( should NOT apply affirmatively for Deferred Action at this time. USCIS has stated that they will begin accepting affirmative applications by mid-August—stay tuned to our Blog for information about when this affirmative process will be available.
USCIS has stated that they will begin accepting affirmative applications by mid-August—stay tuned to this page for information about when this affirmative process will be available. Individuals who are about to be removed and who believe they can demonstrate that they satisfy the eligibility criteria 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 9am – 5pm, Monday – Friday)
Be careful of non lawyers trying to push you to file as you may be putting yourself at risk.
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