Who Qualifies for Deferred Action as an Immigrant Student or Graduate

Young immigrants educated in U.S. schools may receive relief from deportation for two years.

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.

Who Is Eligible for DREAM-Act Deferred Action

According to U.S. Citizenship and Immigration Services (USCIS), you may apply for deferred action if you:

  • had not yet turned age 31 as of June 15, 2012
  • had not yet turned age 16 when you came to the U.S. to live
  • have continuously lived (“resided”) in the U.S. since June 15, 2007 up to when you apply (excluding any brief, casual, and innocent departures)
  • were physically present in the U.S. on June 15, 2012, and also at the time you apply for deferred action
  • either entered the U.S. without inspection before June 15, 2012, or if you entered with inspection, your lawful immigration status (such as a visa or Temporary Protected Status (TPS)) had expired as of June 15, 2012
  • are either in school now (unless absent for emergency reasons), have graduated or earned a certificate of completion from an accredited 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, or three or more other misdemeanors; and do not otherwise present a threat to U.S. national security or public safety (such as by being a member of a gang).

You will, when it comes time to apply, need to supply proof of each item on this list.

Who Is Ineligible for Deferred Action?

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.

What If Your Application Is Denied?

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).

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