A RAY OF HOPE: DEFERRED ACTION AND EMPLOYMENT AUTHORIZATION FOR YOUNG DREAMers

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The announcement made by DHS Secretary Napolitano last Friday, June 15, 2012, is a positive development for the younger population in the immigrant community who were brought into the U.S. at an early age and continued to stay through no fault of their own. These are young men and women who are full of talent, waiting to shine and contribute to the American society but could not move on for lack of proper immigration documentation. For more than a decade now, Illinois Senator Richard Durbin has championed the cause of these young people and tenaciously introduced the DREAM Act but, year after year, the bill became a political casualty.

The recent announcement instructs immigration officers to exercise prosecutorial discretion and grant deferred action, as well as allow the issuance of employment authorization documents (EADs), to those who qualify.

What is deferred action?

It is a conscious effort on the part of the government, through the exercise of prosecutorial discretion, not to pursue the removal (deportation) of those who meet the criteria. This is a temporary solution, not a permanent remedy. As such, deferred action will not grant the applicant a green card, immigration status or citizenship. However, deferred action offers two significant benefits: (a) it relieves the individual from the fear and uncertainty of being caught and someday placed in removal proceedings, while it relieves those who are presently in removal proceedings from being removed; in addition, (b) it provides economic freedom to those who qualify through the issuance of EADs that would enable them to work legally.

Deferred action does not confer substantive rights because the prerogative to grant certain rights belongs to Congress through its legislative action. Thus, the fight is not over to make the DREAM Act or Comprehensive Immigration Reform (CIR) a reality.

The criteria for deferred action

The administrative announcement took effect immediately on June 15, 2012 and implementation will begin within 60 days from this date. Deferred action will be granted for two years to those who do not present a threat to national security or public safety and meet the following criteria:

  1. Entry into the U.S. took place before the applicant’s 16th birthday;
  2. Continuous residence in the United States for a least five years preceding June 15, 2012 (thus, presence in the U.S. since June 15, 2007 or earlier);
  3. Physical presence in the United States on June 15, 2012 (when the announcement was made);
  4. The applicant is currently in school, have graduated from high school, have obtained a general education development (GED) certificate, or honorably discharged veteran of the Coast Guard or Armed Forces of the United States;
  5. The applicant has 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;
  6. The applicant is not above the age of thirty.

Applicants must have verifiable evidence to prove that they meet all the requirements listed above. Evidence of entry and physical presence in the United States may consist of: passport, I-94, border crossing card, birth certificate/translation, medical/immunization records, dated photos, baptismal/confirmation certificates, elementary/middle school/junior high records, proof of participation in school activities, receipts of purchases, and the like. Applicants must also gather their diploma, GED certificate or proof of honorable discharge from the U.S. military, police clearance, record of arrests and court disposition confirming dismissal or lack of prosecution of a criminal complaint, or confirming lack of conviction for a felony or significant/multiple misdemeanor.

Implementation

USCIS and ICE will begin implementation of the application processes within sixty days of the announcement on June 15, 2012. The hotline numbers to call for this process are: 1-800-375-5283 (USCIS) and 1-888-351-4024 (ICE).

Deferred action will be offered for a period of two years, subject to renewal. Below is an excerpt of the announcement of DHS Secretary Janet Napolitano:

“1. With respect to individuals who are encountered by U.S. Immigration and Customs Enforcement (ICE), U.S. Customs and Border Protection (CBP), or U.S. Citizenship and Immigration Services (USCIS):

With respect to individuals who meet the above criteria, ICE and CBP should immediately exercise their discretion, on an individual basis, in order to prevent low priority individuals from being placed into removal proceedings or removed from the United States.

USCIS is instructed to implement this memorandum consistent with its existing guidance regarding the issuance of notices to appear.

2. With respect to individuals who are in removal proceedings but not yet subject to a final order of removal, and who meet the above criteria:

ICE should exercise prosecutorial discretion, on an individual basis, for individuals who meet the above criteria by deferring action for a period of two years, subject to renewal, in order to prevent low priority individuals from being removed from the United States.

ICE is instructed to use its Office of the Public Advocate to permit individuals who believe they meet the above criteria to identify themselves through a clear and efficient process.

ICE is directed to begin implementing this process within 60 days of the date of this memorandum.

ICE is also instructed to immediately begin the process of deferring action against individuals who meet the above criteria whose cases have already been identified through the ongoing review of pending cases before the Executive Office for Immigration Review.

3. With respect to the individuals who are not currently in removal proceedings and meet the above criteria, and pass a background check:

• USCIS should establish a clear and efficient process for exercising prosecutorial discretion, on an individual basis, by deferring action against individuals who meet the above criteria and are at least 15 years old, for a period of two years, subject to renewal, in order to prevent low priority individuals from being placed into removal proceedings or removed from the United States.

The USCIS process shall also be available to individuals subject to a final order of removal regardless of their age.

US CIS is directed to begin implementing this process within 60 days of the date of this memorandum.

For individuals who are granted deferred action by either ICE or USCIS, USCIS shall accept applications to determine whether these individuals qualify for work authorization during this period of deferred action."

Word of Caution Against Notarios and Unauthorized Practitioners of Immigration Law

These favorable announcements could, unfortunately, motivate a feeding frenzy for unlicensed individuals who purport to dispense legal advice and provide assistance to the unsuspecting public or individuals who are desperate to obtain employment cards by any means. Be cautioned not to part with your money without verifying the service provider’s license and office location and fully understanding the type of service that will be provided to you. There is no deadline to avail of the benefit pursuant to this announcement; thus, do not be afraid to take time to find the right professional that you feel comfortable working with. Be cautioned against notarios who promise “to put together everything for you". You cannot afford to have any fraudulent documents in your record and lose the opportunity to avail of any immigration benefit due to fraud. It is also worth visiting this helpful website: www.stopnotariofraud.org, so that you may know how to protect yourself from notario fraud.

Additional Resources

American Immigration Lawyers Association New York Times, June 16, 2012, page 1 Wall Street Journal, June 16, 2012, page 1 and Editorial Page

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