“DREAM ACT” UPDATE

 

Deferred Action for Childhood Arrivals (“DREAMERS Deferred Action”):

As of August 15, 2012, the Dream Act has not yet been passed.  However, the Obama Administration has implemented the Deferred Action for Childhood Arrivals Process which will allow the applicants deferred action for childhood arrivals for a period of two years, subject to renewal, and if qualified, employment authorization. Although the law may change, this deferred action will not grant the applicants a permanent resident status.

To qualify, the applicants must show that they meet the following guidelines:

1) Were under the age of 31 as of June 15, 2012;
2) Came to the United States before reaching the 16th birthday;
3) Have continuously resided in the United States since June 15, 2007, up to the present time;
4) Were physically present in the United States on June 15, 2012, and at the time of making the request for consideration of deferred action with the USCIS;
5) Entered without inspection before June 15, 2012, or the lawful immigration status expired as of June 15, 2012;
6) Are currently in school, have graduated or obtained a certificate of completion from 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
7) Have not been convicted of a felony, significant misdemeanor, three or more other misdemeanors, and do not otherwise pose a threat to national security or public safety.

The applicants may apply on or after August 15, 2012, when they are 15 or older.

 

FREQUENTLY-ASKED QUESTIONS ABOUT THE DEFERRED ACTION FOR CHILDHOOD ARRIVALS

 

What are the USCIC fee associated with the application?

$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.

What is considered “significant misdemeanor”?

Although far from ideal, The Department of Homeland Security (“DHS”) published revised guidance regarding the definition of “significant misdemeanor” that should result in more Dreamers being eligible under the Dreamer Deferred Action status than would have qualified under the earlier guidance.  The earlier guidance had listed simple assaults, drug possession and other minor crimes as significant misdemeanors.  Under the revised guidance, those offenses would disqualify a Dreamer only if she/he received a sentence more than ninety days for the offense.   The revised guidance does not treat a suspended sentence as a sentence for purpose of deciding whether a misdemeanor is significant.

For the purposes of this process, a significant misdemeanor is a misdemeanor as defined by federal law (specifically, one for which the maximum term of imprisonment authorized is one year or less but greater than five days) and that meets the following criteria:

1. Regardless of the sentence imposed, is an offense of domestic violence; sexual abuse or exploitation; burglary; unlawful possession or use of a firearm; drug distribution or trafficking; or, driving under the influence; or,
2. If not an offense listed above, is one for which the individual was sentenced to time in custody of more than 90 days. The sentence must involve time to be served in custody, and therefore does not include a suspended sentence.

The time in custody does not include any time served beyond the sentence for the criminal offense based on a state or local law enforcement agency honoring a detainer issued by U.S. Immigration and Customs Enforcement (ICE). Notwithstanding the above, the decision whether to defer action in a particular case is an individualized, discretionary one that is made taking into account the totality of the circumstances. Therefore, the absence of the criminal history outlined above, or its presence, is not necessarily determinative, but is a factor to be considered in the unreviewable exercise of discretion. DHS retains the discretion to determine that an individual does not warrant deferred action on the basis of a single criminal offense for which the individual was sentenced to time in custody of three months or less.

Note: This is a very complicated area of immigration laws.  For more details, you should consult your immigration attorney.  If you do not have any, please feel free to call us at (626) 943-9999 to make an appointment to consult one of our attorneys.

What is considered “three or more other misdemeanors”?

1. a) Any misdemeanor that is not considered “significant misdemeanor” for which you are sentenced to fewer than 90 days in custody, counts toward the “three or more misdemeanor offenses;
2. b) DHS will not count minor traffic offenses as misdemeanors;
3. c) 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;
4. d) DHS will look at the totality of the circumstances in a case to decide whether a person who has committed a criminal offense will be given deferred action.

Note: This is a very complicated area of immigration laws.  For more details, you should consult your immigration attorney.  If you do not have any, please feel free to call us at (626) 943-9999 to make an appointment to consult one of our attorneys.

Will the USCIS keep the information submitted with the Deferred Action application confidential?

According to USCIS, information provided in a request for deferred action, including information about family members and guardians, will not be shared with ICE and U.S. Customs and Border Protection (CBP) for the purpose of deportation proceedings unless your case involves fraud, a criminal offense, a threat to public safety or national security, or other exceptional circumstances.  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 the application is denied, will the USCIS place the applicant is removal/deportation proceedings?

If the applicant is denied deferred action under this process, the 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 request deferred action, however, it is really important that you first consult a reputable attorney — especially if you have been arrested or convicted of any kind of crime.

If the Deferred Action is approved, will the applicant be able to obtain a state driver 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. In California, the driver license bill AB 2189 passed the Assembly by 55-15 votes and is now headed for Governor Brown.

If the Deferred Action is approved, will the applicant be eligible to pay 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 (California, Connecticut, Illinois, Kansas, Maryland, Nebraska, New Mexico, New York, Oklahoma, Texas, Utah, Washington and Rhode Island) 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. There are strong arguments for letting resident students with deferred action pay in-state tuition.

Should you apply if you are in removal proceedings, have a final removal order or have a voluntary departure order?

If you otherwise qualify, yes. A request should include evidence that you are eligible for deferred action under the criteria outlined above.

FAQ AND ANSWERS FROM USCIS WEB SITE:

May I travel outside of the United States before USCIS has determined whether to defer action in my case?

No.  After August 15, 2012, if you travel outside of the United States, you will not be considered for deferred action under this process. If USCIS defers action in your case, you will be permitted to travel outside of the United States only if you apply for and receive advance parole from USCIS.

If my case is deferred pursuant to the consideration of deferred action for childhood arrivals process, will I be able to travel outside of the United States?
Not automatically. If USCIS has decided to defer action in your case and you want to travel outside the United States, you must apply for advance parole by filing a Form I-131, Application for Travel Document and paying the applicable fee ($360). USCIS will determine whether your purpose for international travel is justifiable based on the circumstances you describe in your request. Generally, USCIS will only grant advance parole if you are traveling for humanitarian purposes, educational purposes, or employment purposes. You may not apply for advance parole unless and until USCIS defers action in your case pursuant to the consideration of deferred action for childhood arrivals process. You cannot apply for advance parole at the same time as you submit your request for consideration of deferred action for childhood arrivals. All advance parole requests will be considered on a case-by-case basis.

To prove my continuous residence in the United States since June 15, 2007, must I provide evidence documenting my presence for every day, or every month, of that period?
To meet the continuous residence guideline, you must submit documentation that shows you have been living in the United States from June 15, 2007 up until the time of your request.  You should provide documentation to account for as much of the period as reasonably possible, but there is no requirement that every day or month of that period be specifically accounted for through direct evidence.  It is helpful to USCIS if you can submit evidence of your residence during at least each year of the period.  USCIS will review the documentation in its totality to determine whether it is more likely than not that you were continuously residing in the United States for the period since June 15, 2007.  Gaps in the documentation as to certain periods may raise doubts as to your continued residence if, for example, the gaps are lengthy or the record otherwise indicates that you may have been outside the United States for a period of time that was not brief, casual or innocent.  If  gaps in your documentation raise questions , USCIS may issue a request for evidence to allow you to submit additional documentation that supports your claimed continuous residence. Affidavits may be submitted to explain a gap in the documentation demonstrating that you meet the five year continuous residence requirement.  If you submit affidavits related to the continuous residence requirement, you must submit two or more affidavits, sworn to or affirmed by people other than yourself, who have direct personal knowledge of the events and circumstances during the period as to which there is a gap in the documentation.  Affidavits may only be used to explain gaps in your continuous residence; they cannot be used as evidence that you meet the entire five year continuous residence requirement.

If I provide my employee with information regarding his or her employment to support a request for consideration of deferred action for childhood arrivals, will that information be used for immigration enforcement purposes against me and/or my company?
A4. You may, as you determine appropriate, provide individuals requesting deferred action for childhood arrivals with documentation which verifies their employment.  This information will not be shared with ICE for civil immigration enforcement purposes pursuant to INA section 274A unless there is evidence of egregious violations of criminal statutes or widespread abuses.