|August 10, 2012|
Previously published on August 7, 2012
On August 15, 2012, eligible young persons may begin applying for deferred action, which allows U.S. Citizenship and Immigration Services (“USCIS”) to exercise its discretion not to seek their removal (“deportation”) from the United States. Applicants for deferred action must be 30 years old or younger; have come to the United States before age 16; have resided in the United States for a continuous period of at least five years as of June 15, 2012; have been present in the United States on June 15, 2012; currently be in school, have graduated from high school or obtained a GED certificate, or be honorably discharged from the U.S. Coast Guard or Armed Forces; and not have been convicted of a felony, a significant misdemeanor, or three or more misdemeanors, and do not otherwise pose a threat to U.S. national security or public safety.
There is no value in filing prior to August 15, as early-filed requests will be rejected. The filing fee for deferred action applications is expected to be $465, pending final review by the Office of Management and Budget.
Those granted deferred action will be able to remain in the United States for a renewable period of two years and can seek permission to work. However, deferred action does not grant any temporary or permanent immigration status. Nor does the policy provide them a path to permanent residence.
The government recently clarified how it will apply the criteria it will consider in determining whether an applicant for deferred action is eligible for temporary relief. The most noteworthy parts of the government’s recent guidance are discussed as follows:
The government had previously announced that deferred action will apply only to foreign nationals age 30 or younger who came to the United States before age 16, among other criteria. USCIS has now clarified that for the government to consider a deferred action request, applicants who have never been in removal proceedings-or who had their removal proceedings terminated prior to their deferred action request-must be at least 15 years old at the time of filing their deferred action request. Applicants who are in removal proceedings, have a final removal order, or who have a voluntary departure order and are not in immigration detention may file for deferred action even if the applicant is under age 15 at the time of filing, so long as the individual meets other criteria. Individuals who were 31 years old or older as of June 15, 2012 will not qualify for deferred action.
Travel and Continuous Residence
To qualify for deferred action, an applicant must have resided in the United States for a continuous period of at least five years as of June 15, 2012. The latest guidance indicates that the residency period will not be broken by “brief, casual, and innocent” absences from the country that occurred prior to August 15, 2012, and that meet the following criteria: (1) the absence was short and reasonably calculated to accomplish the purpose for the absence; (2) the absence was not made under an order of exclusion, deportation, or removal; (3) the absence did not stem from an order of voluntary departure, or an administrative grant of voluntary departure before the foreign national was placed in exclusion, deportation, or removal proceedings; and (4) the purpose of the absence and/or the foreign national’s actions while outside the United States were not contrary to law.
Applicants who traveled outside the United States after August 15, 2012 for any reason will not be considered for deferred action. Those who receive deferred action must apply for and receive advance parole prior to traveling outside the country.
Past Criminal Offenses
Applicants are not eligible for deferred action if they have been convicted of a felony, a significant misdemeanor, or three or more misdemeanors, or otherwise pose a threat to U.S. national security or public safety. USCIS now clarifies that a “felony” consists of a federal, state or local criminal offense punishable by imprisonment for longer than one year.
Offenses that constitute a “significant misdemeanor” include crimes of domestic violence; sexual abuse or exploitation; burglary; unlawful possession or use of a firearm; drug distribution or trafficking; driving under the influence; and any other misdemeanor for which the applicant was sentenced to time in custody exceeding 90 days. For an offense to constitute a “significant misdemeanor,” the maximum term of imprisonment for the offense must not exceed one year, but must be greater than five days. An offense carrying a maximum term of imprisonment longer than one year will constitute a felony.
USCIS will generally not consider minor traffic offenses to constitute a misdemeanor for deferred action purposes. In addition, USCIS will not consider violations of state immigration laws to be felonies or misdemeanors in considering deferred action applications.