In June of 2012, the Obama administration created a new remedy for young immigrants in the U.S. with no legal status. Called “deferred action,” it allows immigrants who were brought to the United States as children and who meet certain other requirements to apply for two years’ protection from deportation (removal), as well a work permit.
Such people are often referred to as “DREAMers,” because Congress has been considering legislation on a similar theme known as the DREAM Act. But it’s impossible to say when or whether Congress will take action on the DREAM Act legislation. The Administration’s creation of this deferred action remedy is meant to fill in the gap.
It’s important to note what this remedy is not. It does not confer amnesty, a green card, or U.S. citizenship. It simply means the immigration authorities should exercise their discretion and decline to deport an otherwise removable person who meets the criteria. Furthermore, family members of the applicant cannot claim any derivative rights to deferred action.
As with any new government policy, a number of uncertainties remain. Although the administration says that deferred action can be renewed after its two-year expiration, there is no protection against the possibility that a later administration will change the policy. And that could leave former applicants with a clear record of unlawful U.S. presence, which is itself a problem for future green card applications.
According to U.S. Citizenship and Immigration Services (USCIS), you may apply for deferred action if you:
You will, when it comes time to apply, need to supply proof of each item on this list.
You will need to match every item on the above list. If, for example, you fit all the criteria but were already 17 when you came to the U.S. to live, you will not qualify. The same goes if you haven’t lived in the U.S. “continuously” for the required period but, for example, spent a few years in the U.S., a few years in your home country, and so forth. USCIS has also indicated that it’s going to look closely at whether the schools from which applicants claim to have graduated are in fact recognized, accredited (in most cases, public) schools.
The criminal grounds of ineligibility are going to be especially challenging for some applicants; especially because the term “significant misdemeanor” is not one that previously appeared in the immigration law, and thus has not yet been applied to particular fact patterns by USCIS or the courts.
Here’s what USCIS has said about significant misdemeanors: They include any misdemeanor, regardless of the prison or other sentence imposed, that involved burglary, domestic violence, sexual abuse or exploitation, unlawful possession or use of a firearm; driving under the influence of drugs or alcohol (DUI or DWI); and drug distribution or trafficking.
But that’s not all. They may also include any other misdemeanor for which the applicant was sentenced to more than 90 days in prison, not including suspended sentences, pretrial detention, or time held on an immigration detainer. (And again, three or more misdemeanors of any sort are a disqualifier for deferred action.)
USCIS has also explained a “non-significant misdemeanor,” as including any misdemeanor punishable by imprisonment of more than five days and less than a year that is not on the USCIS list of significant misdemeanors.
For an overview of what the application process involves, see Deferred Action for Young Immigrants: Application Process.
First off, if you or anyone you know is considering applying for deferred action, you would be wise to consult with, and most likely hire, an experienced immigration attorney. Applying may not be risk-free.
Nevertheless, USCIS has assured attorneys that it will not share information about the immigrant applicants or their family with the enforcement arm of the Department of Homeland Security (DHS), called Immigration and Customs Enforcement (ICE).