On June 15, 2012, the President has announced that effective immediately certain unlawfully present immigrants will temporarily not be subject to removal. This new policy will act to prevent the deportation or initiation of removal proceedings against certain young people who were brought to this country as children, and who have completed at least high school or obtained a GED certificate. The new policy does not grant any kind of status to eligible individuals. Eligible individuals will be granted “deferred action," which is a temporary reprieve from deportation.
This group includes mostly immigrants who would be eligible for the DREAM Act if it were to pass. Requirements include, but are not limited to:
(a) under age 16 at the time of entry (i.e. age 15 and younger),
(b) present continuously in the U.S.for at least five years,as of June 15, 2012,
(c) age 30 or under on June 15, 2012,
(d) currently in school, graduated from high school, have GED, in the military, or honorably discharged from the military, and
(e) no convictions for a felony, multiple misdemeanors, or a serious misdemeanor offense, such as a single conviction for DUI, domestic violence, or simple possession of marijuana of any amount.
This is not an exhaustive list of eligibility requirements.
These individuals will receive what's called Deferred Action, which is temporary protection from removal that can be revoked at any time for any reason or no reason at all. An individual who has been granted Deferred Action is eligible to apply for an Employment Authorization Document (EAD) that gives the person permission to lawfully be employed. Once the EAD is issued, the person may take the EAD card to a social security office and use it to apply for a valid social security number. The person may also use the EAD card as proof of lawful status to apply for a driver's license in every state in the US.
Some important things a person cannot do with an EAD and Deferred Action are:
- Deferred Action/EAD may NOT be used to depart the US and return;
- Deferred Action/EAD does NOT establish eligibility to sponsor or petition for other people;
- Deferred Action/EAD does NOT establish eligibility to apply for permanent residence;
- Deferred Action/EAD does NOT establish eligibility to qualify for federal student loans, or qualify for means-tested public benefits such as food stamps, Medicaid, or welfare.
While the government will immediately stop removals of this group of people, there are not yet procedures in place to apply for the Employment Authorization Documents. Those procedures are expected to be announced sometime in the next 60 days. Beginning June 18, individuals may call the USCIS hotline at 1-800-375-5283, from 8 a.m. to 8 p.m., with questions or to request more information on the new process. The hotline offers assistance in English and Spanish. Individuals seeking more information on the new process should visit USCIS’s website (at http://www.uscis.gov).
The new policy is essentially the next step following earlier DHS/USCIS announcements regarding prosecutorial discretion. In August of 2011, DHS published a memo stating the agency would review deportation cases and grant prosecutorial discretion to “low priority" cases. Since that policy took effect, however, only about two percent of pending removal cases have actually been granted prosecutorial discretion. And those who have received prosecutorial discretion do not necessarily qualify for employment authorization.
The public should understand that DHS can deport only so many persons each year; based on current administrative capacity the system tops out at a 400,000—500,000 deportations annually. DHS estimates there are over 12 million undocumented individuals in the United States. Accordingly, recent DHS policy announcements to prioritize who will be deported make a lot of sense.
The new policy announcement targets a more specific group of individuals, commonly known as “DREAMERs," that DHS estimates to include about 800,000 persons. These are individuals who would benefit from the DREAM Act, a bipartisan piece of legislation that would provide a path to legal status for those who were brought to the United States as children and educated in our nation’s schools. (Although the DREAM Act initially enjoyed bi-partisan support, the Congress has been unable to agree upon it.)