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Keeping The DREAM Alive: A Glimmer Of Hope For The Undocumented Youth!

June 2012 - ByShahzad Ahmed with NeJame Law

On June 15, 2012, the Department of Homeland Security (DHS) announced that effective immediately, certain young people who were brought to the United States illegally through no fault of their own as young children will not be removed from the United States.

Given the Congress's failure to enact the DREAM Act, the DHS as directed by the Executive Branch, has initiated its own policy to protect such individuals from being removed. Those eligible will be eligible to receive deferred action for a period of two years, subject to renewal.

The criteria from the DHS publication are discussed below. Only those individuals who can prove through verifiable documentation that they meet these criteria will be eligible for deferred action. Further, below is a partial summary of the DHS publication.

What is deferred action?

Deferred action is a discretionary decision by the DHS to defer removal action of a foreign national. It does not grant lawful status upon someone.

Deferred action can be terminated at any time at the discretion of DHS.

Who is eligible to receive deferred action under the Department's new directive?

Those individuals who have:

  • Come to the U.S. while under the age of sixteen;
  • Resided continuously in the United States for at least five years immediately preceding June 15;
  • Currently in school or have graduated from high school, or have a general education development certificate, or are honorably discharged veterans of the Coast Guard or Armed Forces of the United States;
  • Not been convicted of a felony offense, a significant misdemeanor offense, multiple misdemeanor offenses, or otherwise pose a threat to national security or public safety;
  • Not above the age of thirty.

Note: What constitutes a "misdemeanor" or a "felony" for immigration purposes must be consulted with an immigration attorney. Also, applicants must also undergo a background check.

What are the advantages of deferred action under the new policy?

Deferred action will be granted for two years. At the expiration of the two year period, the grant of deferred action can be renewed in continued increments of two years.

If I receive deferred action will I be eligible for employment authorization?

Yes. Those who receive deferred action may apply for employment authorization from as long as they prove economic necessity for their employment.

Does the process result in permanent lawful status for beneficiaries?

No. Deferred action does not provide an individual with permanent lawful status or a pathway to obtaining permanent lawful status.

If I receive deferred action through this process, will I be able to travel outside the United States?

USCIS is considering this issue and will announce this as a part of its implementing policy in the next few weeks.

How can I receive deferred action?

First, it is highly recommended that you consult with an experienced immigration attorney before applying for deferral of removal. A denial of your application may result in the initiation of removal proceedings against you, or your removal.

Second, note that in the coming weeks, DHS will announce the details of application procedures. This process is not yet in effect and requests should not be submitted at this time.

Third, those who are not yet in removal proceedings or those who already have a final order of removal, will need to submit a request with supporting evidence to U.S. Citizenship and Immigration Services (USCIS). Such applicants must be at least 15 years of age.

Last, for individuals who are in removal proceedings and have already been identified as meeting the eligibility criteria as part of DHS' case-by-case review, DHS will immediately begin to offer deferred action for a period of two years, subject to renewal.

What if I knowingly state something in the application that is not correct?

An applicant who knowingly makes a misrepresentation to DHS, to receive deferred action or work authorization will be treated as an immigration enforcement priority to the fullest extent permitted by law, subjecting them to criminal penalties.

What offenses constitute a felony?

A felony is a federal, state, or local criminal offense punishable by imprisonment for a term exceeding one year.

What offenses constitute a "significant misdemeanor"?

A significant misdemeanor is a federal, state, or local criminal offense punishable by no more than one year of imprisonment or even no imprisonment that involves: violence, threats, or assault, including domestic violence; sexual abuse or exploitation; burglary, larceny, or fraud; driving under the influence of alcohol or drugs; 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; or unlawful possession of drugs.

How many non-significant misdemeanors constitute "multiple misdemeanors" to disqualify a person from deferred action?

An individual who is not convicted of a significant misdemeanor but is convicted of three or more other misdemeanors not occurring on the same day and not arising out of the same act, omission, or scheme of misconduct is not eligible to be considered for deferred action under this new process.

What if a person did reside in the U.S. for at least five years preceding June 15, 2012, but traveled abroad for only a short time?

The person must demonstrate that he or she has resided in the United States for a least five years preceding June 15, 2012. Brief and innocent absences undertaken for humanitarian purposes will not violate this requirement.

What should I do if I am eligible under this process and have been contacted by DHS or a local law enforcement officer?

Contact an attorney immediately.

Is the DREAM Act still necessary now that we have this new deferred action policy?

Yes. Deferred action does not provide a permanent status and may be revoked at any time. The DREAM Act is necessary to provide a pathway to permanent residency for those individuals who were brought to the United States without their will and through no fault of their own.

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