Obama’s Deferred Action Program Now Open for Applications!Posted on Wednesday, August 15, 2012
Under the Deferred Action program announced by President Obama on June 15, more than a million younger immigrants without lawful status will be eligible for a 2-year renewable work permit and a social security number, along with suspension of actual or potential removal proceedings.
On August 15, USCIS began accepting applications for Deferred Action. An individual must be at least 15 to apply, but if currently in removal proceedings, there is no lower age limit. There is an application fee of $465, and decisions are expected to take several months.
An application for Deferred Action and a work permit will consist of three forms and numerous supporting documents. Consideration for deferred action is based on the ability to present concrete evidence proving that the applicant:
- Was under the age of 31 on June 15, 2012;
- Came to the United States before reaching his/her 16th birthday;
- Has continuously resided in the United States since June 15, 2007;
- Was present in the U.S. on June 15, 2012, and at the time of application;
- Entered without inspection before June 15, 2012, or had lawful immigration status that was expired on June 15, 2012;
- Is currently in school, has graduated or obtained a certificate of completion from high school, or has obtained a GED; and
- Has not been convicted of a felony, significant misdemeanor, three or more other misdemeanors, and does not pose a threat to national security or public safety.
One area of concern for many applicants relates to fulfilling the education requirement. USCIS has defined “currently in school” as enrollment in:
- Elementary, middle or high school;
- An education, literacy or career training program that is designed to lead to college placement, job training or employment; or
- An education program assisting students in obtaining a high school diploma or in passing a GED exam.
If the applicant is in an appropriate education, literacy or career training program, they must show that they are actually working toward placement in college, job training or employment. Programs funded by Federal or State grants are preferred.
Another area of concern relates to arrests and convictions. A felony is defined as any state or federal crime for which the maximum sentence is more than one year in custody, regardless of the time the person actually served. USCIS defines a significant misdemeanor is any crime for which the maximum sentence is 6 days to one year, and for which the person served more than 90 days in custody.
There are several crimes defined as significant misdemeanors regardless of sentence. They include domestic violence, sexual abuse or exploitation, burglary, unlawful possession or use of a firearm, drug distribution or trafficking, and driving under the influence (DUI). A conviction for any of these crimes makes a person ineligible for Deferred Action.
A non-significant misdemeanor is any crime for which the maximum sentence is 6 days to one year, and for which the person served less than 90 days. Generally, minor traffic offenses, including driving without a license, will not count toward the maximum of two misdemeanors. Similarly, a juvenile or expunged conviction will not automatically disqualify a potential applicant. However, a person’s entire record will be considered along with other facts in order to determine whether a grant of Deferred Action is warranted.
The Deferred Action program does have its risks. USCIS will maintain the confidentiality of applicants and their parents or guardians with respect to immigration enforcement. Still, there are certain circumstances – such as suspected fraud on the application or a serious undisclosed crime -- in which information may be shared with law enforcement or ICE for investigation and potential prosecution.
To prepare a convincing case for Deferred Action, applicants will need to assemble documents from multiple sources, including a birth certificate or passport along with financial, medical, educational and/or employment records. Court documents will be required if the applicant has ever been arrested. Many individuals will benefit from attorney guidance to ensure all the required documentation is provided. This is especially true for those who entered without inspection or may have gaps in their documentation.
USCIS has stated that applicants will have only one opportunity to be considered for Deferred Action. If the application is denied for any reason, the decision is final and there will be no appeal. This is another good reason to consult with an immigration attorney who understands the details of the program and has a strong track record of success across a broad range of immigration matters.