This legal guide will discuss the recent program announced by the Obama Administration regarding Deferred Action for Childhood Arrivals. Although the concept of “deferred action" is nothing new to the immigration law, the use of this benefit on such a large scale is something that we have never seen previously. First, let’s discuss the concept of deferred action.
The concept of deferral is putting something aside for another day. The idea here is that the Administration is telling those individuals who are eligible for consideration under this program that it will put off for another day the possibility of enforcing US immigration laws in favor of providing a temporary program whereby these qualified individuals will receive authorization to remain in the US and the opportunity to obtain a work permit during this time.
The series of memoranda and administrative guidance which has been set forth by the Administration makes this program applicable only to individual who have either violated the terms of their status as of June 15, 2012 or who have otherwise been unlawfully present in the US since the time of their initial arrival. As the program is currently structured, individuals who would otherwise qualify for the benefits discussed but who were in lawful immigration status on June 15, 2012 would not be qualified.
The guidance which has been set forth permits only those younger than 31 at the time of submission of the application to be qualified. As to individuals under 16, qualification appears to depend on whether the individual is currently in deportation proceedings. Individuals under 16 are eligible to apply if currently pending in removal proceedings, ordered removed or ordered to voluntarily depart the US and is under 16. Individuals who have never been in removal or deportation proceedings or who have had those proceedings terminated are not eligible to apply if under age 16.
If an individual has a criminal history, qualification depends on how serious the arrest history may be. “Serious" misdemeanors would disqualify an applicant, as would conviction for a felony or three or more misdemeanors. Certain criminal offenses such as driving related misdemeanors may not count towards the three or more misdemeanor rule. “Serious" misdemeanors could depend on the nature of the offense or the period of incarceration ordered.
The application for this program is made on Form I-821D, an application much like the form that is used for Temporary Protected Status (TPS). Much like TPS, all applicants are required to submit a Form I-765, Application for Employment Authorization, even if a work permit is not going to be requested. A new form called the Form I-765WS is also required to discuss the applicant’s economic necessity for requesting a work permit. The fee for the work permit is $380 and a biometrics capture fee of $85 is also required.
If approved, the applicant will receive a Form I-797, Notice of Action, as to the Form I-821D as evidence of the period of time for which deferred action status is approved and a Form I-797 as to the Form I-765 with will provide the period during which employment is authorized. If approved, the work permit should provide a basis upon which the applicant can seek issuance of a social security number and in Florida approved applicants should be eligible to qualify for a drivers license.
By all indications, this program is intended to provide a straight forward and simplified approach to qualifying for deferred action. While most applicants should not have much in the way of difficulty in establishing qualification for each of the program’s requirements, consultation with a licensed attorney is always recommended. While the application process is intended to be simple, there always exist exceptions to the general rules and figuring out whether those exceptions may apply is the service that a knowledgeable and qualified attorney can provide to any applicant.
Often times we come across qualified individuals who may be qualified for some other immigration benefit which would lead to a more permanent status in the US other than that provided by the deferred action program. Keep in mind that this program is one which is intended as being temporary in nature and it is absolutely not a pathway to qualifying for lawful permanent resident status. An individual granted the privilege of deferred action does not change the unlawful status which was had prior to such application being approved.
As this program develops, we are assured the some complications will arise and these issues will be worked out as with any other program implemented for immigration benefits. What is important is that those who are qualified seriously consider filing an application for this benefit. Some fear exists that this program will be used to enforce the immigration laws, however our professional opinion is that the purpose of deferred action is to provide a temporary benefit to very deserving young people who did not make the decision to come to the US and remain here without lawful status.
When changes occur, so too does the fraud and empty promises made to those who most need the assistance which is being offered. My office is charging $500 to complete these applications. Add to this the filing fees and postage expenses for the submission of the application and our price is at approximately $1000 including filing fees. My office has decided to do as much as we can to help the community out with submitting these applications without a substantial fee and based on the complexity of the work involved. Some cases will require additional work depending on the exceptions to the general rules discussed above.
This is not amnesty and this is not a pathway to permanent residency or citizenship. This is a “band-aid" on a much larger problem of a broken immigration system in the US. Do not let anyone take advantage of you or a loved one and if you are spending more than I am charging you should be asking questions why the price is so much and if you do not receive a good answer, walk away. Too many in the community are ripped off by unscrupulous service providers whose only intent is to take something for doing nothing. Keep aware and ask questions. If my office can be of any assistance in your case please contact us to schedule a consultation. We are not charging any fees for consultations relating to this new program.