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Tips for DREAMers to Determine Eligibility for Deferred Action

Posted by attorney Karen-Lee Pollak

On June 15, 2012, U.S. Secretary of Homeland Security Janet Napolitano and President Obama announced that effective immediately certain undocumented youth who were brought to the United States as young children, who do not present a risk to national security or public safety, and meet several key criteria will be considered for relief from removal from the country or from entering into removal proceedings. Under the administration plan, certain unauthorized immigrants, who are DREAM Act-eligible,will be able to avoid deportation and obtain work authorization if they can satisfy specific key criteria:

  1. Came to the United States before they turned sixteen;
  2. Have continuously resided in the United States for a least five years preceding the date of the memorandum (June 15, 2012) and are present in the United States on the date of this memorandum (June 15, 2012);
  3. Are currently in school, have graduated from high school, have obtained a general education development certificate, or are honorably discharged veterans of the Coast Guard or Armed Forces of the United States;
  4. Have not been convicted of a felony offense, a significant misdemeanor offence, multiple misdemeanor offenses, or otherwise pose a threat to national security or public safety;
  5. Are not above the age of thirty.

Only those individuals who can prove through verifiable documentation that they meet these criteria will be eligible for deferred action and work authorization. Individuals will not be eligible if they are not currently in the United States and cannot prove that they have been physically present in the United States for a period of not less than five years immediately preceding June 15, 2012.

Those who demonstrate that they meet the criteria will be eligible to receive deferred action for a period of two years, subject to renewal, and will be eligible to apply for work authorization. This policy will not lead toward citizenship but will remove the threat of deportation and grant the ability to work legally, leaving eligible immigrants able to remain in the United States for an extended period. Illegal immigrant children won’t be eligible to apply for this benefit of deferred action and work authorization until they turn 16 but these younger children will not be deported.

For individuals who are in removal proceedings and have already been identified as meeting the eligibility criteria and have been offered an exercise of discretion as part of Immigration and Custom Removal (ICE ongoing case-by-case review, ICE will immediately begin to offer them deferred action for a period of two years, subject to renewal. If you are in removal proceedings and believe you satisfy the above criteria, please call the ICE 24 hour hotline at 855-448-6903 . If you are subject to a final order of removal and believe you are eligible for the above relief, please call 800-375-5283 .

Some have argued that enlistment in the military is not currently a viable option for persons affected by the above announcement as Secretary Napolitano cannot authorize anyone to enlist in the US Armed Forces (except perhaps the Coast Guard), and did not do so on June 15, 2012.

Generally, unauthorized immigrants are not currently allowed to enlist in the US Armed Forces voluntarily. People with work permits or "deferred action" are likewise ineligible for voluntary enlistment. The announcement does not change the military enlistment law found at 10 USC 504. No Service Secretary has to date authorized the enlistment of DREAMers, or of people who have been granted "deferred action." We will let you know if this changes.

While it is conceivable that a Service Secretary might someday authorize the enlistment of a person who has a work permit because he or she has been granted deferred action, that has not yet happened. This announcement does not expand the categories of non-citizens who are eligible to enlist in the US Armed Forces (Army, Navy, Marines, Air Force, and Coast Guard, including their Reserve Components and the National Guard).

The DHS announcement did state that "honorably discharged veterans" age 30 or younger are eligible for deferred action under the terms of the Memorandum signed by Secretary Napolitano. Given that most honorably discharged veterans under 31 who meet the Memorandums requirements are eligible for naturalization under INA 329, very few will need the relief afforded by the announcement.

While this guidance takes effect immediately, this process is not yet in effect and requests should not be submitted at this time. In the coming weeks, USCIS will outline and announce the procedures by which individuals can engage in this process. USCIS and ICE expect to begin implementation of the application processes within sixty days.

Additional resources provided by the author

Individuals seeking more information on the new policy should visit USCIS’s website, ICE's website, or DHS’s website.

Beginning Monday, June 18, individuals can also call USCIS’ hotline at 1-800-375-5283 or
ICE’s hotline at 1-888-351-4024 during business hours with questions or to request more
information on the forthcoming process.

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