On June 15, 2012, President Obama announced that the Department of Homeland Security will provide “deferred action” for a period of two year to persons who:
- Came to the US under the age of 16;
- Have continuously resided in the US for at least five year prior to the announcement (Since at least June 15, 2007), and are present in the US on June 15, 2012;
- Were not in any lawful status on June 15, 2012.
- Are currently in school, have graduated from high school, have obtained a general education development (GED) certificate, or are honorably discharged veterans of the Coast Guard or Armed Forces of the US;
- Have not been convicted of a felonyFelony:
A crime for which the possible sentence is imprisonment for more than one year. offense, a significant misdemeanorSignificant Misdemeanor:
An Offense for which the maximum term of imprisonment authorized is one year or less, but greater than five years, and either:
an offense of domestic violence; sexual abuse; or exploitation; burglary; possession or use of a firearm; drug distribution or trafficking, or driving under the influence;
the individual was sentenced to time in custody of more than 90 days. offense, three or more misdemeanor offenses, or otherwise pose a threat to national security or public safety;
- Are not above the age of thirty, and are at least 15.
If you are not in removal proceedings, do not apply for deferred action at this time. Unfortunately, this policy may open the door for fraud and deception by so-called “Notarios.” In the United States, notarios have no legal background and cannot legally practice law or represent you. Anyone claiming they can submit an application or charging a fee for applying for deferred action should not be trusted until the process has been announced by the federal government. An immigrant’s case can be delayed by notarios acting in bad faith, resulting in penalties and even deportation.
What is Deferred Action
Deferred action is merely a decision by the government that they will not attempt to deport you for the period it is in effect, and provided you maintain the requirements.
As USCIS states on its website, “deferred action does not excuse … any previous or subsequent periods of unlawful presence.”
What This Is Not
This is not a new law. It is only an executive action being taken by the President. As such, it can be terminated by the President and is likely to be terminated by Mitt Romney, if he becomes President in January 2013, as evidenced by his opposition to the DREAM Act and his statement that “the president’s action makes reaching a long-term solution more difficult,” and that it is “a short-term matter and can be reversed by subsequent presidents.”
In fact, President Obama has stated that “This is not amnesty. This is not immunity. This is not a path to citizenship. It’s not a permanent fix.”
Deferred Action does not provide a path to the green card or to citizenship.
Deferred Action only means that while it is in force, the government will not seek to deport the people who qualify for it.
Deferred Action does not excuse unlawful presence accrued before it is granted, nor unlawful presence accrued after it expires.
What This Will Provide
Deferred action provides protection from deportation while it is in effect.
People who qualify will be eligible for a Work Permit.
Under some circumstances, people who qualify may be eligible for advance parole to allow trips outside the US. Because deferred action does not excuse unlawful presence, travel would only be available to those who are under 18 and a half at the time deferred action is granted to them. Additionally, advance parole will be limited to humanitarian, educational, or employment purposes.
The issuance of Driver’s Licenses will be up to each state.
Deferred Action (DACA) applicants will not be eligible for medical benefits under either the Medicaid or the Children’s Health Insurance Program.
How Do I Apply?
USCIS has indicated that applications will be available on August 15th. The total application fee will be $465. It is not yet clear whether this fee includes the fee for the work permit, or whether the work permit will be an additional $380.
USCIS has not yet provided the address where the applications will be filed.
Applicants must include evidence that:
- They were in the US under the age of 31 on June 15, 2012;
- They entered the US before their 16th birthday;
- They have continuously resided in the US since June 15, 2007;
- They were physically present in the US on June 15, 2012 and at the time the application is submitted.
- They either entered the US without inspection or their immigration status expired as of June 15, 2012.
- They are in school, have graduated or obtained a certificate of completion from high school, have obtained a general education development (GED) certificate, or are an honorably discharged veteran of the Coast Guard or Armed Forces of the US.
Documents that can prove that these requirements are met include:
- Birth certificates;
- Financial records;
- Medical records;
- School records;
- School transcripts;
- GED certificates;
- Report cards;
- Military records (report of separation, etc.)
Affidavits will only be accepted to fill in gaps and to document short trips. A short trip outside the US for lawful purposes taken before August 15, 2012 will not disqualify you. Any other trip will.
What You Should Not Do
You should not hire anyone who tells you you can apply now. You should not hire anyone to file for you unless they are immigration attorneys or are authorized immigration consultants. Many “Notarios” claim they can file for you. However, it is not likely that they are even authorized to fill immigration forms. Using a “Notario” puts your immigration future at risk. Our firm has been contacted by many individuals who got into immigration trouble precisely because they used a “Notario” that made false promises. Do not get scammed.
You should not lie on the application and you should not submit fraudulent documents. Lying on the application and/or submitting fraudulent documents will result in you being placed in removal proceedings.
What You Can Do Now
You can get started now by gathering the documents that will be necessary to prove that you qualify. These documents include as many of the following as possible:
- Birth Certificate
- School Records: diplomas, certificates, GED certificates, report cards, transcripts, and other evidenced of enrollment.
- Medical Records
- Financial Records
- Employment Records
- Military Records: evidence that you are currently in the military or have been honorably discharged.
- Insurance Documents
If you have any arrests, you will need to have the arrest reports and any court documents reviewed by an experienced immigration attorney, such as those at our firm, in order to determine whether they disqualify you from applying. This needs to be done before you apply. Otherwise, you could find yourself with a deportation case instead of deferred action.
Only trust reliable sources of information. These include official government websites (USCIS.gov, charitable organizations, reputable legal organizations and immigration attorneys.
Can A Denial of Deferred Action Be Appealed
A decision on an application for deferred action is final. USCIS will not entertain motions to reopen or motions to reconsider, and there is no appeal from the decision.
What About Your Family Members
Deferred action is only available to those who meet the requirements. It is therefore not available to parents of deferred action applicants, unless the parents, too, meet all the requirements.
USCIS will, however, not refer parents or relatives of deferred action applicants to ICE unless there are fraud, national security or criminal offense grounds to do so.