On Tuesday, August 14, 2012 USCIS announced that Form I-821-D will be used fro the filing of applications for Deferred Action for Childhood Arrivals benefits (DACA) also known as Deferred Action Status for DREAMERS. The USCIS also reissued its expanded guidelines for the program, reminding people that August 15, 2012 is the first day on which an application may be filed. There are an estimated 1,000,000 people living in the US who may potentially qualify for DAS under this new policy initiative, but the USCIS has repeatedly warned that filing procedures will not be in place until August 15, 2012, such that applicants should avoid notarios, consultants and other scam artists who are claiming that they can assist applicants in obtaining benefits earlier and beyond what the program actually offers. DAS is not “amnesty,” nor will it provide “green cards” to applicants, however it IS a very valuable benefit to allow certain childhood arrivals to attend college and realize their dream sin the US.
The basic rules
The USCIS expanded the 5 basic requirements to 7 in it August 3, 2012 notice. A childhood arrival may seek DAS and an employment authorization document (EAD) if he:
1. Was under the age of 31 as of June 15, 2012;
2. Came to the United States before reaching his 16th birthday;
3. Has continuously resided in the United States since June 15, 2007, up to the present time;
4. Was physically present in the United States on June 15, 2012, and at the time of filing a request for consideration of DAS with USCIS;
5. Entered without inspection before June 15, 2012, or his 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 United States; and
7.Has not been convicted of a felony, significant misdemeanor, three or more other misdemeanors, and do not otherwise pose a threat to national security or public safety.
The USCIS’ August 3, 2012 notice also offered the following FAQs to further clarify the requirements and restrictions on eligibility for DAS.
What is deferred action?
“Deferred action is a discretionary determination to defer removal action of an individual as an act of prosecutorial discretion. Deferred action does not confer lawful status upon an individual. In addition, although an individual whose case is deferred will not be considered to be accruing unlawful presence in the United States during the period deferred action is in effect, deferred action does not excuse individuals of any previous or subsequent periods of unlawful presence.
Under existing regulations, an individual whose case has been deferred is eligible to receive employment authorization for the period of deferred action, provided he or she can demonstrate ‘an economic necessity for employment.’ “
What is deferred action for childhood arrivals?
“On June 15, 2012, the Secretary of Homeland Security announced that certain people who came to the United States as children and meet several key guidelines may request consideration of deferred action for a period of two years, subject to renewal, and would then be eligible for work authorization.
Individuals who can demonstrate through verifiable documentation that they meet these guidelines will be considered for deferred action. Determinations will be made on a case-by-case basis under the guidelines set forth in the Secretary of Homeland Security’s memorandum.”
If I am granted DAS, may obtain work authorization?
“Yes. Pursuant to existing regulations, if your case is deferred, you may obtain employment authorization from USCIS provided you can demonstrate an economic necessity for employment.”
Does this process apply to me if I am currently in removal proceedings, have a final removal order, or have a voluntary departure order?
“This process is open to any individual who can demonstrate he or she meets the guidelines for consideration, including those who have never been in removal proceedings as well as those in removal proceedings, with a final order, or with a voluntary departure order (as long as they are not in immigration detention).”
If my case is deferred, am I in lawful status for the period of deferral?
“No. Although action on your case has been deferred and you do not accrue unlawful presence during the period of deferred action, deferred action does not confer any lawful status.
There is a significant difference between “unlawful presence” and “unlawful status.” Unlawful presence refers to a period an individual is present in the United States (1) without being admitted or paroled or (2) after the expiration of a period of stay authorized by the Department of Homeland Security (such as after the period of stay authorized by a visa has expired). Unlawful presence is relevant only with respect to determining whether the inadmissibility bars for unlawful presence, set forth in the Immigration and Nationality Act at Section 212(a)(9), apply to an individual if he or she departs the United States and subsequently seeks to re-enter. (These unlawful presence bars are commonly known as the 3- and 10-Year Bars.)”
Does deferred action provide me with a green card or citizenship?
“No. Deferred action is a form of prosecutorial discretion that does not confer lawful permanent resident status or a path to citizenship. Only the Congress, acting through its legislative authority, can confer these rights.”
Will my immediate relatives or dependents be considered for deferred action for childhood arrivals?
“No. The new process is open only to those who satisfy the guidelines. As such, immediate relatives, including dependents of individuals whose cases are deferred pursuant to the consideration of deferred action for childhood arrivals process, may not be considered for deferred action as part of this process unless they independently satisfy the guidelines.”
Will the information I share in my request for consideration of deferred action for childhood arrivals be used for immigration enforcement purposes?
“Information provided in this request is protected from disclosure to U.S. Immigration and Customs Enforcement (ICE) and U.S. Customs and Border Protection (CBP) for the purpose of immigration enforcement proceedings unless the requestor meets the criteria for the issuance of a Notice To Appear or a referral to U.S. Immigration and Customs Enforcement under the criteria set forth in USCIS’s Notice to Appear guidance. Individuals whose cases are deferred pursuant to the consideration of deferred action for childhood arrivals process will not be referred to ICE.
The information may be shared with national security and law enforcement agencies, including ICE and CBP, for purposes other than removal, including for assistance in the consideration of deferred action for childhood arrivals, to identify or prevent fraudulent claims, for national security purposes, or for the investigation or prosecution of a criminal offense. The above information sharing policy covers family members and guardians, in addition to the requestor.”
How old must I be in order to be considered for deferred action under this process?
“If you have never been in removal proceedings, or your proceedings have been terminated before your request for consideration of deferred action for childhood arrivals, you must be at least 15 years of age or older at the time of filing and meet the other guidelines.”
“If you are in removal proceedings, have a final removal order, or have a voluntary departure order, and are not in immigration detention, you can request consideration of deferred action for childhood arrivals even if you are under the age of 15 at the time of filing and meet the other guidelines.”
“In all instances, you cannot be the age of 31 or older as of June 15, 2012 to be considered for deferred action for childhood arrivals.”
Does “currently in school” refer to the date on which the request for consideration of deferred action is filed?
“To be considered ‘currently in school’ under the guidelines, you must be enrolled in school on the date you submit a request for consideration of deferred action under this process.”
Do brief departures from the United States interrupt the continuous residence requirement?
“A brief, casual, and innocent absence from the United States will not interrupt your continuous residence. If you were absent from the United States for any period of time, your absence will be considered brief, casual, and innocent, if it was before August 15, 2012, and:
The absence was short and reasonably calculated to accomplish the purpose for the absence;
The absence was not because of an order of exclusion, deportation, or removal;
The absence was not because of an order of voluntary departure, or an administrative grant of voluntary departure before you were placed in exclusion, deportation, or removal proceedings; and
The purpose of the absence and/or your actions while outside the United States were not contrary to law.”
May I travel outside of the United States before USCIS has determined whether to defer action in my case?
“No. After August 15, 2012, if you travel outside of the United States, you will not be considered for deferred action under this process. If USCIS defers action in your case, you will be permitted to travel outside of the United States only if you apply for and receive advance parole from USCIS.”
If I have a conviction for a felony offense, a significant misdemeanor offense, or multiple misdemeanors, can I receive an exercise of prosecutorial discretion under this new process?
“No. If you have been convicted of a felony offense, a significant misdemeanor offense, or three or more other misdemeanor offenses not occurring on the same date and not arising out of the same act, omission, or scheme of misconduct, you will not be considered for deferred action under the new process except where DHS determines there are exceptional circumstances.”
What offenses qualify as a felony?
“A felony is a federal, state, or local criminal offense punishable by imprisonment for a term exceeding one year.”
What offenses constitute a significant misdemeanor?
“For the purposes of this process, a significant misdemeanor is a misdemeanor as defined by federal law (specifically, one for which the maximum term of imprisonment authorized is one year or less but greater than five days) and that meets the following criteria:
Regardless of the sentence imposed, is 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; or,
If not an offense listed above, is one for which the individual was sentenced to time in custody of more than 90 days. The sentence must involve time to be served in custody, and therefore does not include a suspended sentence.
The time in custody does not include any time served beyond the sentence for the criminal offense based on a state or local law enforcement agency honoring a detainer issued by U.S. Immigration and Customs Enforcement (ICE). Notwithstanding the above, the decision whether to defer action in a particular case is an individualized, discretionary one that is made taking into account the totality of the circumstances.
Therefore, the absence of the criminal history outlined above, or its presence, is not necessarily determinative, but is a factor to be considered in the unreviewable exercise of discretion. DHS retains the discretion to determine that an individual does not warrant deferred action on the basis of a single criminal offense for which the individual was sentenced to time in custody of three months or less.”
What offenses constitute a non-significant misdemeanor?
“For purposes of this process, a non-significant misdemeanor is any misdemeanor as defined by federal law (specifically, one for which the maximum term of imprisonment authorized is one year or less but greater than five days) and that meets the following criteria:
Is not 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; and
Is one for which the individual was sentenced to time in custody of 90 days or less.
The time in custody does not include any time served beyond the sentence for the criminal offense based on a state or local law enforcement agency honoring a detainer issued by ICE. Notwithstanding the above, the decision whether to defer action in a particular case is an individualized, discretionary one that is made taking into account the totality of the circumstances. Therefore, the absence of the criminal history outlined above, or its presence, is not necessarily determinative, but is a factor to be considered in the unreviewable exercise of discretion.”
If I have a minor traffic offense, such as driving without a license, will it be considered a non-significant misdemeanor that counts towards the “three or more non-significant misdemeanors” making me unable to receive consideration for an exercise of prosecutorial discretion under this new process?
A minor traffic offense will not be considered a misdemeanor for purposes of this process. However, your entire offense history can be considered along with other facts to determine whether, under the totality of the circumstances, you warrant an exercise of prosecutorial discretion.
It is important to emphasize that driving under the influence is a significant misdemeanor regardless of the sentence imposed.”
Will offenses criminalized as felonies or misdemeanors by state immigration laws be considered felonies or misdemeanors for purpose of this process?
“No. Immigration-related offenses characterized as felonies or misdemeanors by state immigration laws will not be treated as disqualifying felonies or misdemeanors for the purpose of considering a request for consideration of deferred action pursuant to this process.”
Will DHS consider my expunged or juvenile conviction as an offense making me unable to receive an exercise of prosecutorial discretion?
“Expunged convictions and juvenile convictions will not automatically disqualify you. Your request will be assessed on a case-by-case basis to determine whether, under the particular circumstances, a favorable exercise of prosecutorial discretion is warranted. If you were a juvenile, but tried and convicted as an adult, you will be treated as an adult for purposes of the deferred action for childhood arrivals process.”
How do I request consideration of deferred action for childhood arrivals?
“Beginning August 15, 2012, you will be required to submit your request for consideration of deferred action to USCIS through a form, along with a form requesting an employment authorization document. The total fees will be $465. USCIS is still developing the forms. Requests received before August 15, 2012, will be rejected.”
Will USCIS conduct a background check when reviewing my request DAS?
“Yes. You must undergo biographic and biometric background checks before USCIS will consider whether to exercise prosecutorial discretion under the consideration of deferred action for childhood arrivals process. If you have been convicted of any felony, a significant misdemeanor offense, three or more misdemeanor offenses not occurring on the same date and not arising out of the same act, omission, or scheme of misconduct, or otherwise pose a threat to national security or public safety, you will not be considered for deferred action for childhood arrivals except where DHS determines there are exceptional circumstances.”
If USCIS does not exercise deferred action in my case, will I be placed in removal proceedings?
“If you have submitted a request for consideration of deferred action for childhood arrivals and USCIS decides not to defer action in your case, USCIS will apply its policy guidance governing the referral of cases to U.S. Immigration and Customs Enforcement (ICE) and the issuance of Notices to Appear (NTA). If your case does not involve a criminal offense, fraud, or a threat to national security or public safety, your case will not be referred to ICE for purposes of removal proceedings except where DHS determines there are exceptional circumstances.”
Can I extend the period of deferred action in my case?
“Yes. Unless terminated, individuals whose case is deferred pursuant to the consideration of deferred action for childhood arrivals process will not be placed into removal proceedings or removed from the United States for a period of two years. You may request consideration for an extension of that period of deferred action. As long as you were not above the age of 30 on June 15, 2012, you may request a renewal after turning 31. Your request for an extension will be considered on a case-by-case basis.”
Form I-821-D has been released and is available now. Potential applicants are duly warned to avoid scam artists seeking to take advantage of the unwary by falsely professing to be licensed to practice law and promising them benefits that cannot be lawfully obtained. USCIS advises that any potentially qualified applicant seek competent legal advice and official information from sources such as www.uscis.gov before submitting any application or documentation to DHS regarding their immigration status in the US.
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Daniel P. Hanlon is a California State Bar Certified Specialist in Immigration and Nationality Law and a principal of Hanlon Law Group, PC, located at 225 S. Lake Ave., 11th Floor in Pasadena, California; Tel. No. (626) 585-8005. Hanlon Law Group, PC is a “full-service Immigration Law firm.” E-mail: [email protected] and www.hanlonlawgroup.com.
