What is deferred action?

According to the department of US Citizenship and Immigration Services (USCIS), “deferred action is a discretionary determination to defer removal action of an individual as an act of prosecutorial discretion.” This grant does not confer lawful status; neither does it excuse any previous or subsequent periods of unlawful presence. Existing regulations allow these individuals to obtain a work permit, as long as he or she demonstrates “an economic necessity for employment.” Deferred action grants exist under the discretion of the Department of Homeland Security (DHS).

What is deferred action for childhood arrivals?

On June 15, 2012, the Obama administration issued a memorandum that enables certain undocumented persons, who came to the United States as children, to request consideration for deferred action. As of August 15, 2012, those who meet the specific set of guidelines are able to submit their application to the USCIS. If approved, the grant of deferred action is valid for two years, and provides eligibility to obtain a work permit. Determinations to defer action are made on a case-by-case basis for those individuals who are able to sufficiently document their eligibility.

Who is eligible for deferred action under this process?

The USCIS has indicated a very specific set of guidelines for those who wish to be considered for deferred action. You are eligible to apply if you:

• were under the age of 31 on June 15, 2012;
• came to the United States before your 16th birthday;
• have continuously resided in the United States since June 15, 2007, up to the present time;
• were physically present in the United States on June 15, 2012, and at the time of filing your request;
• entered without inspection before June 15, 2012, or your lawful immigration status expired as of June 15, 2012;
• are currently 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 United States; and
• have never 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.

What does “in school” mean?

To be considered “currently attending school,” you must be enrolled in:

• a public or private elementary school, middle school, or high school;
• an education, literacy, or career training program that is designed to lead to placement in post-secondary education, job training, or employment; or
• an education program assisting students either in obtaining a high school diploma or its recognized equivalent under state law (for example, certificate of completion), or in passing a GED or other equivalent state-authorized exam

How old do I need to be to apply?

• If you have never been in removal proceedings, or your proceedings have been terminated before your request: you must be at least 15 years old or older at the time of filing (if you 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 deferred action even if you are under the age of 15 at the time of filing (if you meet the other guidelines).
• In all instances: to be considered for deferred action under this process, you may not be 31 years of age or older as of June 15, 2012.

What if I am currently in removal proceedings, have a final removal order, or have a voluntary departure order?

You can still request a grant of deferred action if this is the case, provided that you meet the other criteria. If you are already in immigration detention, the process will differ depending on your situation; consult with your immigration attorney to find out exactly what steps you should take before you can apply for deferred action.

What if I have traveled outside of the United States since June 15, 2007?

As long as your travel was brief, casual, and innocent, the absence will not be considered an interruption of your continuous residence. The USCIS has identified guidelines with regard to traveling outside of the United States; your departure will be considered brief, casual, and innocent if:

1. the absence was short and reasonably calculated to accomplish the purpose for the absence;
2. the absence was not because of an order of exclusion, deportation, or removal;
3. 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
4. the purpose of the absence and/or your actions while outside the United States were not contrary to law.

If you have any questions or concerns about the nature of your absence from the United States, consult with your immigration attorney.

May I travel outside of the United States during the application process?

No. After August 15, 2012, if you travel outside of the United States, your eligibility for deferred action will be compromised and you will not be considered for a grant of deferred action through DACA.

How do I apply for deferred action?

To apply, you will need to submit the following to the USCIS:

• Form I-821D (Consideration of Deferred Action for Childhood Arrivals)
• Form I-765 (Application for Employment Authorization)
• Form I-765WS (worksheet to establish your economic need for employment)
• all supporting documentation and evidence
• $465 in filing fees (application fee and biometrics fee)

When the USCIS receives your application, they will ensure that it is complete and then send you a notice of receipt. If your application is missing any items, including the full amount of the application fee, it will not be accepted for review and you will not be considered for deferred action.

How much will I have to pay in government fees to apply for deferred action and a work permit?

$465.00 ($380 for the work permit fee and $85 for the biometrics fee).

Can I have the application fee waived?

A limited number of people may qualify for a fee exemption, but you must apply for this and get approval prior to filing your application for deferred action. Consult with your attorney to find out if you meet the criteria necessary to qualify for an exemption.

Is there any way to expedite the process?

No; premium processing is not available for deferred action. Some dishonest practitioners may claim to speed up your application if you pay them an extra fee, but no one has the ability to process applications faster. The USCIS evaluates cases in the order in which they are received, and the number of applications in their processing centers determines the amount of time it takes to complete the review.

Will the USCIS run a background check on me?

Yes—you must undergo biographic and biometric analysis as part of your application for deferred action. Once the USCIS has received your application, they will contact you to set up an appointment for your biometrics analysis. Your picture and fingerprints will be run against a variety of databases run by Homeland Security and other government agencies. If you have been convicted of any felonies or misdemeanors, or have any serious criminal activity on your record, your eligibility for deferred action may be affected; consult with your attorney prior to filing your case to discuss the implications of your background check.

What if I have violated a state immigration law?

Immigration-related offenses as defined by your state’s law will not disqualify you from being considered for deferred action.

What if I have expunged or juvenile convictions on my record?

These convictions do not automatically disqualify you. Your case will be reviewed on an individual basis, and the USCIS will make some determinations based on exceptional circumstances. Your immigration attorney can help you clarify potential issues with your background check, as everyone’s situation is different.

What qualifies as a national security or public safety threat?

If your background check or other evidence serves to indicate that your presence in the United States may threaten public safety or national security, the USCIS may deem you ineligible to receive a grant of deferred action. Indicators that you pose such a threat include, but are not limited to, gang membership, participation in criminal activities, or participation in activities that threaten the United States.

The Deferred Action eligibility requirements state that to apply, I cannot have been convicted of a significant misdemeanor offense. What offenses qualify as a “significant misdemeanor”?

A significant misdemeanor is a misdemeanor as defined by federal law (maximum term of imprisonment is 1 year or less, but greater than 5 days), and either:

• 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 (regardless of the sentence imposed); or
• not an offense listed above, but the individual was sentenced to more than 90 days in custody.

How many non-significant misdemeanors are considered “multiple misdemeanors”?

The USCIS indicates that multiple misdemeanors are three or more non-significant misdemeanors that did not occur on the same day and did not arise out of the same act, omission, or scheme of misconduct.

Will the information I share in my application be used for immigration enforcement purposes against me or my family?

The goal of this application process is not to identify and criminalize undocumented individuals. The USCIS offers a confidentiality provision; this agrees to keep your information private from immigration enforcement agencies, unless you meet their criteria to be issued a Notice To Appear (NTA). Individuals are encouraged to consult with their immigration attorney prior to filing their application so that they are aware of the information they are providing to the USCIS and if or how it will be accessed.

The USCIS does outline that “this policy, which may be modified, superseded, or rescinded at any time without notice, is not intended to, does not, and may not be relied upon to create any right or benefit, substantive or procedural, enforceable by law by any party in any administrative, civil, or criminal matter.”

Is my employer allowed to provide me with employment documentation so that I can apply for deferred action?

Employers are able to provide individuals with documentation verifying employment, as they deem appropriate. This information will not be shared with Immigration and Customs Enforcement unless there is evidence of an egregious violation or widespread abuse.

Do I have to tell my employer I am applying to DACA?

No. Your immigration status is private and you do not need to share it with anyone other than your immigration attorney. If you are applying for DACA, we highly recommend you do not tell your employer, no matter how friendly your relationship is.

In your DACA application, if you can prove you have been in the U.S. without providing employment records (such as pay stubs) it’s the best way to go. Good alternatives to pay stubs include utility bills, phone bills, school records, medical records or bills, or even receipts of payment sent to relatives in your home country.

If your employment records contain a Social Security Number that is not your own, talk to an immigration attorney before submitting them as part of your deferred action application.

Do I have to tell my employer I got my work permit from DACA?

No. Your employer not need to know the work permit is only temporary subject to renewal in 2 years. If you have never provided any false employment verification to your employer, then there should be no issue with keeping your current job. Remember that your DACA work permit is all you need to prove you are eligible for employment.

I’ve heard of the DREAM Act. Is DACA really any different?

This deferred action policy for DREAMers is a temporary solution. The Department of Homeland Security (DHS) is responsible for issuing the DACA order; this one of the agencies within the federal government’s executive branch. DHS has the power to make certain decisions about the enforcement of immigration laws, but does not have the power to create a path to permanent resident status and/or citizenship. Only Congress, through its legislative authority, can do this. The DREAM Act is proposed legislation that must be passed by Congress to become law; DACA is a temporary solution to provide relief until Congress establishes more permanent immigration reform.

Now that we have DACA, do we still need the DREAM Act?

Yes. Deferred action does not provide permanent resident status or a pathway to citizenship. Only Congress, according to its legislative authority, can confer the certainty that accompanies permanent lawful status. As President Obama has stated, individuals deserve to be certain about their status in the United States; currently, substantial legislation does not exist to provide a working, efficient pathway for non-citizens to obtain legal status or presence.

Can a new president or Congress end the deferred action program?

Possibly. However, we believe the deferred action program will not end in the near future unless it is replaced by the DREAM Act or another immigration reform law. Clearly, President Obama fully supports the deferred action program. Presidential candidate Mitt Romney has not rejected the program; he has said he would replace it with a permanent law, but has not yet given specific details about his proposals.

Will I be eligible for employment authorization?

Yes! If your case is deferred, you will be issued a work permit for the duration of your deferred action order, provided that you can demonstrate an economic need for employment.

Will I get a social security number?

Yes; however the government will not automatically issue you a social security number with your deferred status or work permit. After you have been notified of your deferred action grant, you will need to apply for a social security number at your local Social Security Office.

Are there college scholarships available for students with DACA?

Many colleges, foundations, and local scholarship organizations provide scholarships for DREAMers and DACA grantees. However current U.S. laws dictate that undocumented students, even if they have a deferred action approval, are not eligible for grants and scholarships at the federal level such as Pell grants or federally-backed loans or work-study positions. Read more about scholarships for DACA-mented students on our blog.

Can I travel to other states in the United States once I am approved for DACA?

With a DACA approval, an individual can travel anywhere in the United without fear of deportation. This includes Alaska and Hawaii as well as U.S. territories including Puerto Rico, Guam, U.S. Virgin Islands, and the Commonwealth of the Northern Mariana Islands. However, you cannot have a flight layover in any country besides the United States on your way to these destinations.

May I travel outside of the United States?

Yes; once your application is approved, travel is acceptable if it is for specified purposes and by advanced application. The USCIS generally grants advance parole for international travel if it is for humanitarian, educational, or employment purposes; there are some exceptions, which depend on the circumstances. All requests are reviewed by the USCIS on a case-by-case basis, but your attorney will be able to help you determine whether your travel purposes are justifiable.

What are the requirements for advance parole for people with DACA?

USCIS does not currently have specific guidelines regarding Advance Parole for DACA grantees. If you have previously been removed from the United States, leaving the country even with DACA and Advance Parole could be a huge risk. Advance Parole is reserved for cases like death of a family members or traveling abroad for school or work, and even with a good reason to leave there are still risks involved. Please consult an immigration attorney if you wish to apply for Advance Parole with DACA.

Can my family members obtain deferred action and a work permit, too?

Each person must qualify for deferred action and a work permit on his or her own merits. The immediate family members of an individual whose deferred action application is approved may also be eligible, but he or she must qualify and apply separately.

Will DACA expose the immigration status of my undocumented family members?

Even those who are comfortable revealing their own status may be concerned about the impact on family members. There are no recorded cases where a parent of a DACA applicant has been referred to ICE due to their child’s DACA application. You don’t have to use information about your family to apply to DACA, either. An experienced immigration attorney can offer many solutions to this problem, and it shouldn’t be a reason not to apply.

Can I get an extension after the two-year deferral?

Yes. If you get your deferred status, you won’t be removed from the United States or be placed into removal proceedings unless your status is terminated. After the two-year period is up, you may request an extension; the USCIS will consider these requests on a case-by-case basis.

If I get denied, can I appeal the decision?

Unfortunately, there are no appeals or reconsiderations through this deferred action process. If you believe that the USCIS made a technical error regarding your application, you may request a review if you meet specific criteria; generally speaking, except in exceptional circumstances, the USCIS will not reevaluate your case.

If my case is denied, will I be placed in removal proceedings?

You will not automatically be referred to ICE if your application for deferred action is denied. Generally, if you are not a criminal offender or a threat to public safety or national security, you will not be a priority for removal from the United States; however these determinations are up to the discretion of the USCIS. If you are concerned about being referred to ICE, or about being issued an Notice To Appear, consult with your immigration attorney as soon as possible to find out what options are available to you.

If I don’t want to apply for deferred action even though I qualify, what other options do I have?

DACA is the best and only legal option currently available to undocumented immigrants in the United States. If you are fortunate enough to qualify, we strongly encourage you to apply.

Some DACA-eligible candidates say they are waiting for immigration reform. There are currently no laws in place that provide a path to legal permanent residence/citizenship to undocumented immigrants, and there is no guarantee immigration reform will pass.

There are rare exceptions where an immigrant might qualify for both DACA and a different type of visa. The only way to find out if you qualify for these visas is by speaking with an immigration lawyer.