Because the government does not have the resources to deport everyone present in the U.S. without authorization, Immigration allows certain foreigners to remain here legally.

If the case is in Immigration Court, they can submit a written request to government attorneys. If the government attorney grants this request for prosecutorial discretion (deferred action), the foreign national’s case will be closed. Therefore, they can live in the U.S. without fear of deportation. In Florida, foreigners with closed Immigration Court cases can also obtain a valid driver’s license.

Not all cases qualify for prosecutorial discretion. The request must explain why the foreigner merits prosecutorial discretion. Those most likely to succeed are:

  • foreigners with no criminal arrests or convictions
  • foreigners who have been in the U.S. for a long period of time
  • foreigners who have strong family ties in the U.S. (for example, U.S. citizen or lawful permanent resident children or spouse)

The foreign national should submit their story in the most favorable light and include supporting documents. For instance, if the foreigner is requesting that they be permitted to remain because they care for a U.S. citizen child who suffers from an illness, the foreigner should include the child’s birth certificate, medical records, and letters from friends and family indicating that the foreigner is the primary caregiver.

If the case is not in Immigration Court, you may still qualify for deferred action. Some children who came to the U.S. before their 16th birthday, were under the age of 31 on June 15, 2013, have either completed high school or are currently enrolled in school (or have been honorably discharged from the armed forces) may qualify for Deferred Action for Childhood Arrivals. A formal request for DACA must be submitted to the U.S. Citizen and Immigration Services along with supporting documents. A DACA approval results in a work permit valid for two years. In most states, a DACA approval also results in a state driver’s license.

Even foreigners who do not qualify for DACA may still qualify for deferred action. A foreigner who submits a request for deferred action of this type must include all positive factors in their case, including humanitarian concerns. Customs and Border Protection, Immigration and Customs Enforcement, and U.S. Citizen and Immigration Services all have the authority to process deferred action requests. While there is no formal application for these requests, foreigners should contact the office with jurisdiction over their case to learn of any local procedures they must follow.

Although the author is a Board-certified attorney, this communication is intended as general information and not specific legal advice. This communication does not create an attorney-client relationship. Consultation with an experienced competent immigration attorney is the best way to address individual concerns