DEFERRED ACTION UPDATE FROM USCIS:AUGUST 6, 2012
From Davis& Associates
After almost 2 months of waiting, USCIS has finally given us some direction on the upcoming Deferred Action program for young people who meet certain criteria. There are a few things to remind you of and update you on. Receiving a grant of deferred action means that DHS will not deport a foreign national for a period of two years unless DHS terminates the deferred-action grant. In addition to refraining from deporting an applicant who receives a grant of deferred action, a grant of deferred action under the program, called Deferred Action for Childhood Arrivals (DACA), also allows an applicant to receive employment authorization upon showing an economic necessity for employment.
An applicant may request a discretionary grant of deferred action for a temporary period of two years – subject to renewal – if the applicant:
1.Was under the age of 31 as of June 15, 2012;
2.Came to the US before his or her 16thbirthday;
3.Has continuously resided in the US since June 15, 2007 up to the present time (brief, innocent, and casual departures are acceptable as long as made before August 15, 2012 or the applicant has received deferred action and has received authorization from DHS for advance parole for departures made after August 15, 2012);
4.Was physically present in the US on June 15, 2012 and continues to be present in the US at the time of filing the deferred action consideration request with USCIS;
5.Entered without inspection before June 15, 2012 or the applicant’s lawful immigration status expired as of June 15, 2012;
6.Is currently in school, has graduated or obtained a certificate of completion from high school, has obtained a general education development (“GED”) certificate, or is an honorably discharged veteran of the Coast Guard or Armed Forces of the US; and
7.Has not been convicted of a felony, significant misdemeanor, three or more other non-significant misdemeanors, and does not otherwise pose a threat to national security or public safety.
On August 15, 2012, USCIS will begin accepting applications for this discretionary benefit. The application process will be two separate forms; however, the government filing fee will be a total of $465to cover both the expense of the deferred-action application and the employment-authorization application. USCIS has requested that the applicant submit the application for deferred action along with the employment-authorization application to the USCIS lockbox. The four USCIS service centers across the US will adjudicate the applications.
There is no option for expedited processing for these deferred-action requests.
There will be no fee waivers, although there are certain fee exemptions for qualifying applicants who can demonstrate certain factors of financial hardship. An applicant interested in applying for a fee exemption must obtain an approval of the fee exemption from USCIS before applying for deferred action. USCIS will not accept fee exemption applications related to deferred action applications until August 15, 2012.
USCIS has requested that all applicants who are 15 years old and older apply affirmatively through USCIS, even if the applicant is in removal proceedings before an immigration court, has received a final order of removal or order of voluntary departure from an immigration judge, or has had his or her removal proceedings terminated or administratively closed by an immigration judge. However, those persons who are eligible for deferred action who are currently detained should apply directly with the Immigration and Customs Enforcement (“ICE”)Office of the Public Advocate (1-888-351-4024) or through the applicant’s detention/deportation officer. In summary, an applicant does not need to be 15 years of age or older at the time of filing the request for deferred action IF he or she was previously in removal proceedings, has a final removal order, or has a voluntary departure order. In all other cases, the applicant should be at least 15 years old to apply affirmatively with USCIS but not over 31.
Basic evidence should prove the applicant’s eligibility for deferred action and need for employment. USCIS announced that documentation to prove that the applicant entered the US before age 16, was physically present in the US on June 15, 2012, and has accumulated more than five years of continuous residence in the US before June 15, 2012 may include:
4.Employment records; and
5.Military records (Form DD-214, US military separation form, or military health records).
Applicantsmay not use only affidavits (sworn statements) to prove entry before the age of 16 or continuous physical presence for the past five years. However, USCIS will accept affidavits to explain gaps in documentation about the five-year continuous physical presence requirement or to explain brief, casual, and innocent departures from the US. The applicant may provide circumstantial evidence to explain gaps in documentation for both the five-year continuous physical presence and the entry before age 16 requirement.
If an applicant has previously been in removal proceedings, USCIS requests the applicant to provide copies of any decisions from an immigration court or the Board of Immigration Appeals.
To receive a grant of deferred action, an applicant must have no previous felony conviction; no previous significant misdemeanor conviction; and not more than three convictions for a non-significant misdemeanor. Additionally, the applicant must not otherwise pose a threat to national security or public safety.
A felony is a federal, state, or local criminal offense punishable by imprisonment for at least one year.
A significant misdemeanor is an offense punishable by a term of imprisonment that is one year or less but greater than five days. A significant misdemeanor can be an offense of domestic violence; sexual abuse or exploitation; burglary; unlawful possession or use of a firearm; drug distribution or trafficking; or driving under the influence. A significant misdemeanor may also be one for which an individual was sentenced to imprisonment for more than 90 days. A conviction for driving under the influence is a significant misdemeanor regardless of the sentence imposed.
A non-significant misdemeanor is an offense punishable by a term of imprisonment that is one year or less but greater than five days that does not include any of the significant misdemeanors listed above. Additionally, a non-significant misdemeanor is one for which the individual was sentenced to imprisonment of 90 days or less.
Minor traffic offenses, such as driving without a license, will not be considered misdemeanors. However, please note that even if an applicant has a single criminal offense for which he or she was sentenced to imprisonment for three months or less, USCIS may still choose to deny deferred action in its discretion after reviewing the case based on a totality of the circumstances analysis.
Processing and Decision
After applying, an applicant will receive a notification letter to present himself or herself in person for a biometrics appointment with USCIS. The purpose of the appointment is to allow USCIS to conduct a background check on the applicant to determine any disqualifying criminal information about the applicant’s past. As mentioned above, any felony, significant misdemeanor, or three or more separate misdemeanor convictions will disqualify an applicant from applying for deferred action unless USCIS determines that exceptional circumstances exist.
Interviews associated with applications to USCIS for adjudication of deferred-action requests will not normally be required except in cases of fraud or other situations requiring criminal investigation.
While a case is pending, an applicant may check the status of his or her case at www.uscis.gov. USCIS will notify an applicant in writing about its discretionary decision. If USCIS denies a request for consideration for deferred action, an applicant may not file a motion to reopen or reconsider or appeal the decision. USCIS will not review discretionary determinations.USCIS has not yet reported an approximate timetable for completing review of applications.
Travel Outside of the US before August 15, 2012
Any brief, casual, and innocent absence before August 15, 2012 from the US will not disqualify an applicant from meeting the five-year continuous physical-presence requirement for deferred action. A brief, casual, and innocent absence is any absence that was short and for a particular purpose; not due to a removal order or voluntary departure order; and was otherwise a lawful absence. USCIS will provide further updates on their website, www.uscis.govabout these types of absences from the US beginning August 15, 2012 and whether they disqualify applicants.
Authorized Travel Outside of the US
USCIS announced that applicants who receive a grant of deferred action who would like to travel outside of the US for humanitarian, educational, or employment purposes may apply for advance parole (permission to travel outside of the US and re-enter) using immigration form I-131, Applicant for Travel Document. The government filing fee for this form is $360, and the applicant must apply for it only after receiving a grant of deferred action. An applicant may not leave the US while the deferred-action application is pending, and an applicant may only leave the US after receiving both a grant of deferred action and advance parole.
Disclosure of Applicant Information
In general, USCIS has stated that it will not disclose applicants’ or their families’ or guardians’ personal information to ICE or the Customs and Border Protection (“CBP”) for removal enforcement unless “exceptional circumstances”apply or the applicant meets the criteria for a Notice to Appear (“NTA”) for a referral to ICE as set forth in NTA guidance, which is published at www.uscis.gov/nta.USCIS will generally keep private information contained in the applications and not disclose it to other federal agencies including ICE and CBP unless USCIS determines that the information is needed for fraud and criminal investigative purposes, national security concerns, and public-safety issues.
Please note that because this program is a discretionary policy, it is subject to change as DHS continues to decide how to implement it.It confers no rights or benefits because it is not a law.Consult the links below for updated information or speak with a licensed attorney or other qualified representative for more details.
Above all, we have learned that this program remains subject to change at the discretion of the DHS. Because we are committed to providing excellent legal services and customer service to our clients, we are dedicated to keeping our clients informed and will do so throughout the process of learning about how DHS plans to implement this program.
As a final note, this article neither contains legal advice nor establishes an attorney-client relationship. For more information about how to apply for deferred action, please call for a free consultation at 214.628.9888 or come to our seminar on Friday, August 10, at 7:00pm at the Farmers Branch Recreation Center at 14050 Heartside Place, Farmers Branch, TX 75234 to listen to our attorneys discuss the policy and answer common questions and risks about it.
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