Deferred Action Program Now Effective as of August 15, 2012

On June 15, 2012, the Obama administration announced a new immigration program — Deferred Action for Childhood Arrivals. This program was announced to give young US immigrants without legal documentation, an opportunity to stop the threat of deportation proceedings and apply for a 2-year temporary work permit. Over 1 million individuals across the US could benefit, an estimated 15,000 from Colorado.

On August 15, 2012, USCIS began to accept applications. USCIS has provided a more detailed FAQ page on their website and addressed outstanding questions. What do the changes mean to you?

What We Know

1. What is Deferred Action? Deferred Action for Childhood Arrivals allows in general young adults age 15 through 30, that meet specific guidelines announced by the DHS Secretary Janet Napolitano, to obtain deferred action status. As such, one can be eligible for a 2-year temporary work permit which allows one to work legally, and it also allows one to avoid the fear of deportation during that time.

2. Am I elegible? Qualified individuals must:

  1. have arrived in the US before their 16th birthday
  2. have lived continuously in the US from June 15, 2007 through June 15, 2012
  3. be under the age of 31 on June 15, 2012
  4. have entered the country without inspection before June 15, 2012 or individuals whose immigration status has expired
  5. comply with specified school and/or military requirements
  6. have no convictions for serious felonies or have multiple criminal misdemeanors
  7. reside in the US on June 15, 2012 and in the country at the time of application

The seven guidelines above are listed in very general terms. We strongly urge you to contact us directly, especially if you are unclear on your legal standing ony one of the listed items. Each case is unique and the application cannot be undone.

3. What are meanings of “significant criminal offense” “misdemeanor offense” in the guidelines?

We have more guidance provided by USCIS here  on the defnition of these criminal offenses. However, if you have ANY criminal offense, it is best if you talk to an immigration attorney before proceeding.

4. When can we file and what do we need? As of August, 15, 2012, applications were being accepted. Applications can be found on the USCIS website. The Form I-821D MUST be submitted with the I-765 and I-765WS or else the whole package will be rejected. The instructions t the I-821D are very helpful and will list what documents/evidence you will need, but if in doubt, please contact a Denver immigraton attorney.  For instance, it may be difficult to document continuous presence in the US for five years. After the application has been received and processed, individuals will undergo a background check and then receive notification for a biometric (fingerprint) appointment. If deferred status is granted, the work authorization card will then begin to be processed (and not before). The card will then come in approximately 70-90 days after being granted deferred status.

5. Cost for application: $465.00 This is non-refundable, even if the application is denied.

6. Any deadline? Currently, ‘NO’ although see comments below.

What We Don’t Know

There are many issues still being defined or not yet known because the process is so new.  It’s extremely important to contact a Denver immigration attorney before filing an application. Each case is unique and only a qualified lawyer can advise on the best course of action.

1. Political Uncertainty – A change in leadership after the Tuesday, Nov. 6, 2012 presidential election could impact the new ruling. Lobby groups will be busy trying to sway government officials one way or another. One needs to understand the risks involved with this.

2. Criminal Offenses – A clear definition of all criminal offenses is not yet set. Will it be handled on a case-by-case basis? What happens to applicants that have previously been charged with drug possession? These are extremely important issues and once an individual is declined, they can not resubmit the application.

3. History of False Documents – If false documents have previously been used to secure a social security number or green card, it’s best to be extremely cautious. It is not exactly clear how the government will respond to those type of cases now or in the future if someone is eventually eligible for adjustment of status or a permanent visa ( aka green card).

4. False Claim to US Citizenship – Making a false claim to being a US citizen – even if in the employment context – is a deportable offense. A lawyer is the only person that can properly advise on the best course of action if this has occurred.

5. Trips Out of the US After Initial Entry – While the USCIS FAQ elaborates and states that “brief casual and innocent” trips abroad will not interrupt continuous presence, there are still several factual unknowns about how trips may or may not impact a successful Deferred Action application.

While deferred action is a much welcome proposal for those youth who have long waited for Congress to pass the DREAM Act (and failed), applicants should move forward cautiously as there are some hidden risks, especially if you have a criminal record, use falsified documents or false claims to US citizenship in the past or had a history of exiting and re-entering the United States. Use only an accredited Denver immigration lawyer.

Please contact us if you have any questions on this or other immigration issues.

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