August 8, 2012
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The Department of Homeland Security released details this week on its plan to grant “deferred action” to immigrant youths who were brought to the country as children. The announcement, which was accompanied by an updated FAQ and other materials on how to apply, comes eight weeks after DHS Secretary Janet Napolitano revealed the initiative, which could immediately benefit more than 900,000 immigrants. The new guidance from DHS addresses many questions about the application process—the answers to which appear below—but leaves others unresolved.
Who will be eligible for deferred action under the initiative?
Immigrants may apply for deferred action if they have no valid immigration status; entered the United States before age 16; were 30 or younger as of June 15, 2012; have lived continuously in the United States since June 15, 2007; have not been convicted of specified criminal offenses (see more details below) or otherwise pose a threat to public safety; and are in school on the date the application is filed, have graduated from high school or earned a GED, or served in the military. Applications will only be considered for immigrants who are currently 15 or older, unless they are currently in removal proceedings or have a final order of removal or voluntary departure.
How and when can applicants apply?
Starting August 15, qualified immigrants may apply for deferred action by submitting a form, which has not yet been released, to U.S. Citizenship and Immigration Services (USCIS). Before submitting an application, however, immigrants who are currently in detention should first contact their detention officer or the Immigration and Customs Enforcement (ICE) Office of the Public Advocate at (888) 351-4024.
How much will the application cost?
There will be no fee associated with the deferred action application itself. However, all applicants will have to pay an $85 biometrics fee associated with a background check. In addition, unless falling under certain exemptions for impoverished individuals, recipients of deferred action who want a work permit will have to pay the standard $380 fee to obtain an Employment Authorization Document (EAD). More information on fee exemptions will be made available on August 15.
What evidence must be submitted with the application?
Among other evidence, applicants may submit financial, medical, school, employment, or military records to demonstrate their eligibility. School records include, but are not limited to, GED certificates, report cards, and school transcripts. Affidavits will generally not be sufficient to demonstrate eligibility, except for the requirement that the applicant has been continually present in the United States since June 15, 2007. Additional information will be made available on August 15.
Will information in the application be kept confidential?
According to DHS, any information provided in the application, including information relating to applicants’ family members or legal guardians, will not be used for immigration enforcement proceedings, unless the applicant meets the existing criteria for referral to ICE or issuance of a Notice to Appear (NTA) in immigration court. (See below.)
Will applicants who are denied deferred action be placed in removal proceedings?
According to DHS, the administration will follow existing policies regarding the initiation of removal proceedings for immigrants who are denied benefits for which they affirmatively applied. Under a November 2011 memo, such immigrants will only be placed in removal proceedings if they engaged in fraud during the application process; have been convicted of an offense making them removable from the United States, or are under investigation or have been arrested for an “egregious public safety” criminal offense; or pose a threat to national security.
What criminal convictions will make applicants ineligible for deferred action?
Applicants will not be eligible for deferred action if they have been convicted of (1) a felony, defined as any crime punishable by more than one year in prison, (2) a “significant” misdemeanor (defined below), or (3) three or more other misdemeanors for which they were sentenced to more than five days in jail, not including minor traffic offenses. Convictions for immigration-related offenses classified as felonies or misdemeanors by state laws (e.g. Arizona SB 1070) will not be considered.
What is a “significant” misdemeanor?
DHS will deem “significant” any misdemeanor, regardless of the sentence imposed, involving burglary, domestic violence, sexual abuse or exploitation, unlawful possession of firearms, driving under the influence, or drug distribution or trafficking. In addition, DHS will deem significant any other misdemeanor for which an applicant was sentenced to more than 90 days in jail, not including suspended sentences and time held pursuant to an immigration detainer.
Will deferred action recipients be permitted to travel outside the country?
Yes, but only if they first apply for and receive a special travel document known as “advance parole.” Generally, advance parole is only granted for travel relating to humanitarian, educational, or employment purposes. By departing the country, however, immigrants who were previously unlawfully present in the United States for more than six months after their eighteenth birthday could face legal obstacles re-entering the country or applying for a green card in the future.