It is very disheartening to witness children of immigrants work so hard to obtain good grades in school, achieve honor roll standing in high school, get accepted to top universities, only to find out that all doors to the American Dream are closed and locked. On June 15, 2012, Secretary of Homeland Security Janet Napolitano issued a memorandum regarding the exercise of prosecutorial discretion on certain individuals who came to the US as children which partially opens some of the doors. Effective immediately, certain young people who were brought to the United States through no fault of their own as young children and meet several key criteria will be considered for relief from removal from the country. Those who demonstrate that they meet the criteria will be eligible to receive deferred action for a period of two years, subject to renewal.
Pursuant to the Secretary’s June 15, 2012 memorandum, in order to be eligible for deferred action, individuals must prove the following:Have come to the United States under the age of sixteen;
Have continuously resided in the United States for at least five years preceding June 15, 2012 and are present in the United States on June 15, 2012;
Currently be in school, have graduated from high school, have obtained a general education development certificate, or are honorably discharged veterans of the Coast Guard or Armed Forces of the United States;
Have not been convicted of a felony offense, a significant misdemeanor offense, multiple misdemeanor offenses, or otherwise pose a threat to national security or public safety;
Not be above the age of thirty.
Individuals must also complete a background check and, for those individuals who make a request to USCIS and are not subject to a final order of removal, must be 15 years old or older.
Deferred Action does not confer lawful legal status in the United States. Deferred action is a discretionary determination to defer removal/deportation of an individual as an exercise of prosecutorial discretion. Aliens will not accrue unlawful presence while in deferred action.
Individuals who are granted deferred status is eligible to receive an employment authorization for the period of the deferred action provided the individual can demonstrate “an economic necessity for employment.”
Deferred action will be issued in increments to 2 years subject to renewal. Each individual case will be subject to review at the time of renewal.
Individuals should be prepared to introduce evidence proving that the individual has met all the criteria described above. Although the guidance takes effect immediately, the final procedures for seeking review of your case has not yet been implemented. The USCIS and ICE will be implementing the procedures for the application process within 60 days.
What are the risk of seeking deferred action? If the case is denied specially due to criminal conviction reasons, there is a risk that the individual may be served with a Notice to Appear and placed on removal proceedings.
The administration may also have a change in policy in the future.
One has to weight the risk versus the rewards of availing of this procedure. Perhaps the rewards of being able to work legally in this country, obtain a driver’s license, a social security number, and not be threatened of being removed from this country for 2 years outweighs the risk.
Please note that this article is not legal advice and is not intended as legal advice. The article is intended to provide only general, non-specific legal information. This article is not intended to cover all the issues related to the topic discussed. The specific facts that apply to your matter may make the outcome different than would be anticipated by you. This article does create any attorney client relationship between you and the Law Offices of Kenneth U. Reyes, P.C. This article is not a solicitation.
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Attorney Kenneth Ursua Reyes was President of the Philippine American Bar Association. He is a member of both the Family law section and Immigration law section of the Los Angeles County Bar Association. He has extensive CPA experience prior to law practice. LAW OFFICES OF KENNETH REYES, P.C. is located at 3699 Wilshire Blvd., Suite 700, Los Angeles, CA, 90010. Tel. (213) 388-1611 or e-mail [email protected]; Website kenreyeslaw.com.
