Deferred Action FAQ
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The following is information about the deferred action policy that President Obama announced in June 15, 2012. While we have made every attempt to keep it accurate, the information presented here should not be considered legal advice. Document originally composed by the National Immigration Law Center.
On June 15, 2012, President Barack Obama announced that the U.S. Department of Homeland Security (DHS) would not deport certain DREAM Act–eligible undocumented youth. Under a directive from the secretary of DHS, these youth will be given a type of temporary permission to stay in the U.S. called “deferred action.” Deferred action will be valid for two years and may be renewed at the end of the two years. Individuals who receive deferred action may apply for and may obtain employment authorization.
IMPORTANT: The federal government will not accept deferred action applications until August 15, 2012. If you apply now, your application will be rejected.
What is deferred action?
Deferred action is a kind of administrative relief from deportation that has been around a long time. (“Administrative” relief is relief that may be granted by DHS, without the person necessarily having to go to immigration court.) Through it, DHS authorizes a non-U.S. citizen to temporarily remain in the U.S. The person may also apply for an employment authorization document (a “work permit”) for the period during which he or she has deferred action status.
Deferred action will be granted on a case-by-case basis. Even if you meet the requirements outlined below, DHS will still have to decide whether to grant you deferred action.
A grant of deferred action is temporary and does not provide a path to lawful permanent resident status or U.S. citizenship.
Who is eligible for deferred action under the Obama administration’s policy announced on June 15, 2012?
To be eligible for deferred action, you must:
- Have come to the United States before your sixteenth birthday.
- Have continuously lived in the U.S. since June 15, 2007, and up to the present time.
- Be present in the U.S. on June 15, 2012, and at the time of making your request for deferred action.
- Not have lawful immigration status on June 15, 2012. This means you must have entered the U.S. without papers before June 15, 2012, or, if you entered lawfully, your lawful immigration status must have expired as of June 15, 2012.
- Be at least 15 years old, if you have never been in deportation proceedings or your proceedings were terminated. If you are currently in deportation proceedings, have a voluntary departure order, or have a deportation order, and are not in immigration detention, you may apply for deferred action even if you are not yet 15 years old.
- Be 30 years old or younger as of June 15, 2012 (a person who had not yet turned 31 on that date is also eligible).
- Be in school, have graduated or obtained a certificate of completion from high school, have obtained a general education development (GED) certificate, or be an honorably discharged veteran of the Coast Guard or U.S. armed forces. If you are enrolled in school on the date that you submit your deferred action application, that will be considered to “be in school.”
- Have not been convicted of a felony offense. A felony is a federal, state, or local criminal offense punishable by imprisonment for a term exceeding one year.
- Have not been convicted of a significant misdemeanor offense or three or more misdemeanor offenses. See below for more information about offenses that may disqualify you.
- Not pose a threat to national security or public safety (DHS is still defining what these terms mean but has indicated that they include gang membership, participation in criminal activities, or participation in activities that threaten the U.S.).
- Pass a background check.
How do I apply?
Beginning August 15, 2012, you can submit your request for deferred action to U.S. Citizenship and Immigration Services (USCIS) through a form that must be filled out, along with another form requesting an employment authorization document. USCIS is still developing the deferred action form, so it is not yet available to the public.
Will USCIS conduct a background check as part of my deferred action request?
Yes. These checks involve checking the biographic and biometric information that you provided against a variety of databases kept by the federal government.
What are the fees associated with the deferred action application?
You should expect to pay $465, which includes a $380 fee for the employment authorization application and an $85 fee for fingerprints. Fee waivers are not available. However, fee exemptions will be available in very limited circumstances.
How do I prove that I qualify for deferred action?
You can start gathering documents such as financial records (lease agreements, phone bills, credit card bills), medical records, school records (diplomas, GED certificates, report cards, school transcripts), employment records, and military records. If you have ever been arrested, you should request a copy of your criminal history from your state or the Federal Bureau of Investigation (FBI).
What is considered a “significant misdemeanor”?
A misdemeanor is a crime for which the maximum term of imprisonment is one year or less but more than five days. DHS considers the following to be “significant misdemeanors”:
- An offense of domestic violence; sexual abuse or exploitation; burglary; unlawful possession or use of a firearm; drug distribution or trafficking; driving under the influence (these offenses are considered significant misdemeanors regardless of the length of the sentence that is imposed).
- For offenses not listed above, a misdemeanor is one for which you were sentenced to more than 90 days in custody. This does not include a suspended sentence.
What type of offenses count towards the “three or more misdemeanor offenses”?
- Any misdemeanor not listed under “significant misdemeanor” for which you are sentenced to fewer than 90 days in custody counts toward the “three or more misdemeanor offenses.”
- DHS will not count minor traffic offenses as misdemeanors.
- DHS will not count immigration-related offenses created by state immigration laws as being misdemeanor offenses or felonies. For instance, Arizona, Alabama, and other states have passed laws that make it a crime for undocumented people to engage in many everyday actions; these crimes will not be counted as felonies or misdemeanors.
- DHS will look at all the circumstances in a case to decide whether a person who has committed a criminal offense will be given deferred action.
If I am granted deferred action, how long will deferred action last?
Deferred action will be granted for two years. When the two-year period expires, the grant of deferred action can be renewed, pending a review of the individual case.
If I am granted deferred action, will I be eligible for employment authorization?
You will be eligible for employment authorization, but you will have to apply for it separately. If you are granted deferred action, you may apply for and get employment authorization from USCIS. Information about employment authorization requests is available on USCIS’s website atwww.uscis.gov/i-765.
If my period of deferred action is extended, will I need to reapply for my work permit?
Yes. If you apply for and receive an extension of the period for which you are granted deferred action, you must also request an extension of your employment authorization.
May I travel outside the United States?
If you travel outside of the U.S. after August 15, 2012, you won’t be eligible for deferred action. However, if USCIS approves your request for deferred action, you can travel outside of the U.S. if you apply for and receive advance parole from USCIS. Advance parole allows you to leave the U.S. for humanitarian, employment, and educational reasons.
Will I be able to get a driver’s license?
State driver’s license requirements for immigrants, and the documents accepted as proof of eligibility, vary by state. Since a grant of deferred action is listed in the federal Real ID Act as a basis of eligibility for a license that’s recognized for certain federal purposes, there are strong arguments for states to grant driver’s licenses to people granted deferred action. It may take advocacy to ensure that your state recognizes persons granted deferred action as eligible for a license.
Will I be able to get in-state tuition?
The rules on in-state tuition for immigrants vary by state and sometimes by college system. Thirteen states already allow certain students to pay in-state tuition, regardless of their immigration status. You will need to check your state’s laws and policies to determine whether residents who have deferred action are eligible to pay in-state tuition. In some states, students must have resided in the state in a lawful status for at least a year in order to qualify for in-state tuition.
Although there are strong arguments for letting resident students with deferred action pay in-state tuition, it may take advocacy to ensure that your state recognizes deferred action as an eligible category and accepts your documents for in-state tuition purposes.
If I am currently detained, how do I get deferred action?
Right now Immigration and Customs Enforcement (ICE) is reviewing the cases of people who are detained. If ICE identifies a case as meeting the eligibility requirements outlined above, ICE should offer the person deferred action for a period of two years. In the next few weeks, ICE will announce the process through which people in deportation proceedings can request a review of their case.
If I am not detained, how do I get deferred action?
There is no application process yet. USCIS will begin accepting requests on August 15, 2012. Once a process is in place, people who are not detained will be able to submit a deferred action request to USCIS. If you submit such a request, it should include evidence that you are eligible for deferred action under the criteria outlined above.
If I apply for deferred action, will the information be kept confidential?
According to USCIS, information provided in a request for deferred action, including information about family members and guardians, will not be shared with U.S. Immigration and Customs Enforcement (ICE) and U.S. Customs and Border Protection (CBP) for the purpose of deportation proceedings unless USCIS finds that you are a threat to national security, have committed fraud in the deferred action application, or have been convicted of a criminal offense. However, the information in your request may be shared with national security and law enforcement agencies, including ICE and CBP, for purposes other than deportation, including to identify or prevent fraudulent claims, for national security purposes, or for the investigation or prosecution of a criminal offense.
If I am denied deferred action, will I be placed in deportation proceedings?
If you are denied deferred action under this process, USCIS will refer your case to ICE if your case involves a criminal offense, fraud, or a threat to national security or public safety. It is against USCIS policy to refer cases to ICE where there is no evidence of fraud, a criminal offense, or a threat to public safety or national security, unless there are exceptional circumstances. Before you apply, however, it is really important that you first consult with a DREAM advocate or a reputable attorney or legal services program—especially if you have ever been arrested or convicted of any kind of crime.
How is the new deferred action policy different from DREAM legislation that has been proposed in the past?
The announcement came from DHS, which is one of the agencies within the federal government’s executive branch. DHS has the power to make certain decisions about the enforcement of immigration laws. The executive branch does not have the power to create a path to permanent lawful status and citizenship. Only Congress, through its legislative authority, can grant that.
The DREAM Act is legislation that must be passed by Congress to become law. Past DREAM Act proposals have included a path to citizenship. A grant of deferred action is only temporary and does not provide a path to lawful permanent residency or citizenship.
Deferred action is only a temporary fix. We still need to fight for the DREAM Act to be enacted so undocumented youth can have a permanent solution.
Did the president issue an executive order?
No, the president did not issue an executive order. Executive orders have the full force of law. The announcement the president made on June 15 was about a policy change. The policy change is described in a memo from DHS secretary Janet Napolitano and a memo from ICE director John Morton. These memos are not a change in law—they only give guidance on how DHS should apply this change in policy. The decision to grant certain young people deferred action can be changed or reversed in the future.
Should I apply for deferred action?
We will have a better sense of the risks of applying for deferred action after August 15, 2012. After getting as much information as you can and consulting with a DREAM advocate or a reputable attorney or legal services program, especially if you have ever been arrested or convicted of any kind of crime, you should make your own decision about whether you want to apply.
Remember, USCIS will not tolerate fraud, so make sure your deferred action request is accurate and complete before you submit it.
Where can I get more information?
To get up-to-date information regarding continuing advocacy and community education on this issue, visit United We Dream’s websites, www.weownthedream.org and www.unitedwedream.org. If you are in deportation proceedings, you can visit the ICE website at www.ice.gov or call the ICE hotline at 1-888-351-4024 (9 a.m. - 5 p.m., English & Spanish). Everyone else can visit USCIS’s website, www.uscis.gov/childhoodarrivals, or call the USCIS hotline at 1-800-375-5283 (8 a.m. - 8 p.m., English & Spanish).
How can I get involved with the DREAM movement?
Visit www.unitedwedream.org to find a DREAM group in your area. We encourage you to get involved and join the movement for social justice!