Deferred Action for Childhood Arrivals

Introduction

On June 15, 2012, President Barack Obama signed an executive order announcing that certain young undocumented immigrants who entered the United States illegally as children or stayed in the country illegally may request, on a case-by-case basis, consideration of deferred action, and remain in the country and work without fear of deportation for at least 2 years.  Deferred action is a discretionary determination and does not grant the undocumented individual lawful immigrant status, change immigration status, or provide a pathway to citizenship.  After the 60-day implementation period passed, U.S. Citizenship and Immigration Services began accepting requests for consideration of deferred action for childhood arrivals on August 15, 2012.

Criteria

In order to be considered for deferred action, an undocumented individual must meet the following criteria:

  • Came to the U.S. before his/her 16th birthday;
  • Has continuously resided[1] in the U.S. since June 15, 2007, and was present in the U.S. on June 15, 2012;
  • Is currently a student, has graduated from high school, has obtained GED, or is an honorably discharged veteran of the U.S. Coast Guard or Armed Forces;
  • Has not been convicted of a felony offense, a significant misdemeanor, or 3 or more other misdemeanors, and does not otherwise pose a threat to national security or public safety[2];
  • Is not above the age of 30 and does not have lawful immigration status as of June 15, 2012.

Individuals who have never been in removal proceedings or whose proceedings were terminated before they apply for deferred action must be at least 15 years old when they file their application, but not over 30 as of June 15, 2012.  Individuals who are currently in removal proceedings or subject to a final removal or voluntary departure may apply for deferred action, even if they are under 15, but not if they are over 30 as of June 15, 2012.  Individuals who are currently in immigration custody should not apply to the USCIS, but instead should contact their ICE detention officer for further assistance.

Application Process

Those who believe they qualify for deferred action may submit Form I-821D, Consideration of Deferred Action for Childhood Arrivals, to USCIS, along with supporting documentation.  Individuals who file Form I-821D must also file Form I-765, Application for Employment Authorization, and Form I-765WS, Form I-765 Worksheet.  The total fee for Forms I-821D, I-765 and the I-765WS is $465, which includes a $380 fee for Form I-765 and an $85 biometric services fee.  Neither the Form I-765 fee nor the biometric services fee may be waived.

If deemed to qualify, the applicant will be granted deferred action for a 2-year period, after which recipients may request a renewal.  Applicants will be eligible for future renewals as long as they were under age 31 on June 15, 2012.

Note:

Even if an applicant is prima facie eligible for deferred action, it is not guaranteed.  Applicants will be revealing their unlawful presence to the government.  In cases where an application for deferred action is denied, DHS will follow existing policies regarding the initiation of removal proceedings, and for applicants who knowingly make a misrepresentation or knowingly fail to disclose facts in the deferred action application, they may be subject to criminal prosecution and/or removal proceedings. 

Even after an applicant is granted deferred action, he or she may not travel abroad without first receiving a grant of advance parole from USCIS, which requires a separate application by filing Form I-131, Application for Travel Document, along with a $360 fee.  Even if advance parole is granted, it may not be in the applicant’s best interest to travel outside the country, as they may be subject to inadmissibility bars.

[1] “Brief, casual, and innocent” absences from the U.S. will not interrupt continuous residence.  An absence is “brief, casual, and innocent” if it was short, was not due to a removal order, was not because of an order of voluntary departure, and the purpose of the absence and applicant’s actions while outside the U.S. did not violate the law.

[2] A “felony” is any federal, state, or local criminal offense punishable by imprisonment for more than one year (meaning, the maximum sentence exceeds one year).  A “misdemeanor” is any federal, state, or local offense punishable by more than five days but one year or less in jail.  A “serious misdemeanor” is any misdemeanor where an individual received a sentence of more than 90 days in jail, not including suspended sentences and time held pursuant to an immigration detainer.  In addition, regardless of the sentence imposed, a “serious misdemeanor” includes burglary, domestic violence, sexual abuse or exploitation, unlawful possession of firearms, driving under the influence, or drug distribution or trafficking.

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