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Deferred Action for Childhood Arrivals-FAQ

In Immigration on August 17, 2012 at 1:02 PM


On August 15th, 2012, U.S. Citizenship and Immigration Services (USCIS) began accepting requests for consideration of deferred action for childhood arrivals.

What is Deferred Action? 

Deferred action is a discretionary determination to defer removal action of an individual, via an act of prosecutorial discretion. If granted, it will allow young people, brought to the United States as young children, through no fault of their own, the chance to work, study, and live in the U.S. without fear of deportation. The deferred action program is intended to help streamline enforcement of federal immigration laws by focusing limited immigration enforcement resources on removing undocumented immigrants who have been convicted of crimes, or who are considered to be a risk to national security.

Deferred action is not amnesty or immunity. It does not confer lawful immigration status upon an individual.Only the Congress, acting through its legislative authority, can confer such rights. As such, it is important to note that the deferred action program is not an executive order with the full force of law; accordingly, the decision to grant certain young people deferred action can be changed or reversed in the future.

How Do I Know If I Am Eligible for Deferred Action?

You are eligible to request deferred action if you:

  • Were under the age of 31, as of June 15, 2012;
  • Came to the United States before reaching your 16th birthday;
  • Are at least 15 years of age at the time of filing;
  • Up until to the present time, have continuously resided in the United States since June 15, 2007, other than for brief innocent departures;
  • Were physically present in the United States on June 15, 2012, as well as at the time you  make your deferred action request with USCIS;
  • Entered without inspection before June 15, 2012, or your lawful immigration status expired as of June 15, 2012;
  • Are currently in school, have graduated or obtained a certificate of completion from high school, have obtained a general education development (GED) certificate, or are an honorably discharged veteran of the Coast Guard or Armed Forces of the United States; and
  • Have not been convicted of a felony, significant misdemeanor such as a single DUI, three or more other misdemeanors, and do not otherwise pose a threat to national security or public safety.

 What Benefits Will I Be Entitled to Under the Deferred Action Program?

 An individual who has been granted deferred action is eligible to receive an Employment Authorization Document (EAD) in two year increments for the period of deferred action. At the expiration of the two year period, the grant of deferred action can be renewed, pending a review of the individual case. If an individual applies for and receives an extension of the period for which they were granted deferred action, they must subsequently request an extension of their employment authorization.

In Texas, and in many other states, the Employment Authorization Document (EAD) should also allow a deferred action beneficiary to obtain a drivers license.   

Undocumented immigrants who are granted deferred action will also not accrue unlawful presence in the U.S. during the period that the deferred action is in effect. However, it will not absolve these individuals of any previous or subsequent periods of unlawful presence.

Immediate relatives of qualified applicants however will not be considered for deferred action unless they independently satisfy the guidelines.

What Fees Are Required by USCIS to Apply for Deferred Action?  

The total fees payable to USCIS to apply for deferred action will be $465. This represents the standard $ 85.00 fee for biometrics and the standard $380.00 fee for the Employment Authorization Document.

How Do I Prove to USCIS That I Am Entitled to Deferred Action?

 You can start by gathering documents that demonstrate:

1. You came to the United States before the age of 16;

2.  You have continuously resided in the United States for at least five years preceding June 15, 2012;

3.  You were physically present in the United States as of June 15, 2012;

4. Your identification, such as a passport, birth certificate accompanied by photo identification;

5.     You are either in school, graduated from high school, or have obtained a GED.  This includes, but is not limited to: A GED certificate, a high school diploma, report cards, and school transcripts.

Documents that will establish the foregoing, include, but are not limited to: financial records (lease agreements, phone bills, credit card bills, etc), medical records, school records, such as transcripts and diplomas, employment records, and military records.

Affidavits generally will not be sufficient on their own to demonstrate that you meet the guidelines for USCIS to consider you for deferred action for childhood arrivals. However, Department of Homeland Security ( DHS) has indicated that in some instances, multiple sworn affidavits, signed by a third party under penalty of perjury, can also be used to support meeting the following guidelines, but only if the documentary evidence available is insufficient or lacking:

  • A gap in the documentation demonstrating that you meet the five year continuous residence requirement; and
  • A shortcoming in documentation with respect to the brief, casual and innocent departures during the five years of required continuous presence.

USCIS will not accept affidavits as proof of satisfying the following guidelines:

  • You are currently in school, have graduated or obtained a certificate of completion from high school, have obtained a GED, or are an honorably discharged veteran from the Coast Guard or Armed Forces of the United States;
  • You were physically present in the United States on June 15, 2012;
  • You came to the United States before reaching your 16th birthday;
  • You were under the age of 31 on June 15, 2012; and
  • Your criminal history, if applicable.

Will USCIS consider circumstantial evidence that I have met certain guidelines?

If available documentary evidence is insufficient or lacking, circumstantial evidence may be used to establish the following guidelines and facts:

  • You were physically present in the United States on June 15, 2012;
  • You came to the United States before reaching your 16th birthday;
  • You satisfy the five year continuous residence requirement, as long as you present direct evidence of your continued residence in the United States for a portion of the required five-year period and the circumstantial evidence is used only to fill in gaps in the length of continuous residence demonstrated by the direct evidence; and
  • Any travel outside the United States during the five years of required continuous presence was brief, casual, and innocent.

However, USCIS will not accept circumstantial evidence as proof of any of the following guidelines or facts:

  • You were under the age of 31 on June 15, 2012; and
  • You are currently in school, have graduated or obtained a certificate of completion from high school, have obtained a General Education Development (GED) certificate, or are an honorably discharged veteran of the Coast Guard or Armed Forces of the United States.

For example, if you do not have documentary proof of your presence in the United States on June 15, 2012, you may nevertheless be able to satisfy the guideline circumstantially by submitting credible documentary evidence that you were present in the United States shortly before and shortly after June 15, 2012, which under the facts presented, may give rise to an inference of your presence on June 15, 2012 as well. However, circumstantial evidence will not be accepted to establish that you have graduated high school. You must submit direct documentary evidence to satisfy that you meet this particular guideline.

How Do I Apply for Deferred Action?  

You will be required to submit your request for consideration of deferred action to USCIS through form I-821D, Consideration of Deferred Action for Childhood Arrivals. You will also have to apply for employment authorization on forms I-765 and I-765WS.  It is important to note that in order to receive employment authorization, you must demonstrate “an economic necessity for employment.”

Am I Allowed to Travel Outside the U.S. While I Apply for Deferred Action?

If you travel outside of the U.S. after August 15, 2012, you will not be eligible for deferred action.  However, if USCIS approves your request for deferred action, you can travel outside of the U.S., if you apply for and receive advance parole from USCIS. Advance parole allows you to leave the U.S. for humanitarian, employment, and educational reasons.

Will I Have to Undergo a Background Check As Part of My Deferred Action Request?

All individuals applying for deferred action will have to submit to biographic and biometric checks. These checks involve comparing the biographic and biometric information that you provide against a variety of information databases kept by the federal government.

 Am I Still Eligible for Deferred Action if I Have a Criminal Record?

It depends. A laundry list of various crimes will disqualify potential beneficiaries from benefits under the deferred action program, including, but not limited to:

  •  A felony conviction;
  • A single DUI;
  • Three or more unrelated misdemeanor convictions;
  • A single “significant misdemeanor” conviction. This includes crimes involving violence such as threats, assault and domestic violence; sexual abuse or exploitation; burglary, larceny, or fraud; obstruction of justice or bribery; unlawful flight from arrest, prosecution, or the scene of an accident; unlawful possession or use of a firearm; drug distribution or trafficking; and unlawful possession of drugs;
  • Simple traffic offenses will not disqualify an applicant.

If you have ever been arrested, you should also request a copy of your criminal history from your state or the FBI.

 Is Deferred Action Available if I Am Already in Removal Proceedings or if I Am Already Under an Order of Voluntary Departure?

The deferred action policy is available to persons who are in, or have been in removal proceedings, as well as persons with a final removal or voluntary departure order, even if they are under fifteen years of age.

Specifically, three categories of individuals are affected:

  • Persons currently in removal proceedings may have those proceedings terminated;
  • Persons with a final removal order can also apply for deferred action with USCIS as soon as the agency begins accepting applications;
  • Persons whose departure period has not yet expired can have their cases re-opened for purposes of termination and a grant of deferred action.

If you are in one of these three categories, you should take immediate action to make sure that you are not removed from the U.S.

If My Deferred Action Application is Denied, Can I Appeal the Decision?

You cannot an appeal or submit a motion to reopen/reconsider if your application is denied.  However, the memo is silent about whether you can reapply for deferred action if your initial application is denied.

In extremely limited situations, you can request a review of the denial.

Will the Information I supply USCIS for My Deferred Action Application be Kept Confidential?

According to USCIS, information provide in a request for deferred action, including information about family members and guardians, will not be shared with ICE and U.S. Customs and Border Protection (CBP) for the purpose of removal (deportation) proceedings unless USCIS finds that you are a threat to national security, have committed fraud in the deferred action application, or have been convicted of a criminal offense. However, the information in your request may be shared with national security and law enforcement agencies, including ICE and CBP, for purposes other than deportation, including to identify or prevent fraudulent claims, for national security purposes, or for the investigation or prosecution of a criminal offense.

If My Deferred Action Application is Denied, Will I be Placed in Deportation Proceedings?

It is against USCIS policy to refer cases to ICE where there is no evidence of fraud, a criminal offense, or a threat to public safety or national security, unless there are exceptional circumstances. However, before you apply, it is important that you first consult with a qualified immigration practitioner if you have ever been arrested or convicted of any kind of crime.

What Should I Do Now to Get Ready to Apply for Deferred Action?

We are recommending that individuals who are, or who think they may be eligible for the deferred action program do the following to prepare to file their application for deferred action:

  • Review their immigration history with a qualified immigration attorney to verify that they are indeed eligible for deferred action;
  • Review their family’s immigration history to see who else in their family might be eligible for deferred action;
  • Get the required supporting documents in order for submission to USCIS;
  • If applicable, request a copy of your criminal history from your state or the FBI;
  • Set aside sufficient funds to cover the required USCIS fees.
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