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Deferred Action is here. What does it mean for you?
November 24, 2014
Below will follow a brief overview of the more important highlights of the Presidents November 20, 2014 Executive Order. It is posted for your general information. However, it is critical that you seek experienced legal counsel before you present yourself to the Federal government with any application under the President’s Executive Order. The consequences of an error in judgment can be catastrophic!
US Legal Solutions Has the experience of successfully representing hundreds of deferred action applicants and is ready to offer the experience of its lawyers to make sure your case is given the best possible chance of success. In that effort, US Legal Solutions will be offering free informational sessions at its offices as follows:
So what did President Obama do?
This past Thursday, President Obama made good on his resolve to act within his constitutional powers to make our country’s immigration system work as well as possible in face of Congressional failure. In effect, the President has moved to make the best of the mess he has been handed by Congress.
The practical effect of President Obama’s Executive Order has been that Jeh Johnson, Secretary of Homeland Security, has now issued a number of policy memoranda to the immigration related agencies within his jurisdiction: US Citizenship and Immigration Service (USCIS), Immigration and Customs Enforcement (ICE) and Customs and Boarder Protection (CBP). Three of these memoranda are of particular significance.
Expanded Deferred Action.
First, as we reported would likely be the case, Director Johnson has directed Leon Rodriguez, Director of USCIS, to expand the existing Deferred Action for Childhood Arrivals (DACA) program in two important respects.
- To expand the existing DACA program by removing the age restrictions, by adjusting the date by which a DACA applicant must have last entered the United States to qualify for DACA and by extending the period of deferred action granted from two year increments to three year increments; and
- To further expand the exercise of deferred action to permit a second basis for application — parents of US citizen and lawful permanent resident (holding a green card) children who have been in the United States since January 1, 2010.
As a result of this first November 20, 2014 policy memorandum, individuals will now qualify for DACA if the meet the following criteria:
- Have last entered the United States and have continuously resided in the US since not later than January 1, 2010;
- Are physically present in the United States when filing;
- Were younger than the age of 16 years at the time they last entered; and
- Had no lawful status as of November 20, 2014;
- Have a clean criminal record which is generally defined as no felony convictions, no more than two misdemeanor convictions (other than minor traffic offenses) and no significant misdemeanors (as defined in a separately issued policy memorandum on prioritization of removal cases); and
- Meet the preexisting educational requirement of being in high school, having obtained a high school diploma, being in GED classes, having obtained a GED or have been honorably discharged from the military.
- There is no longer any requirement that an applicant be at least 15 years old or younger than 31 years old to apply.
The DHS memorandum further directs that USCIS should begin accepting applications under these new DACA requirements not later than 90 days from November 20, 2014 or by February 18, 2015. Additionally, those granted DACA are to be given deferred action and work authorization for three years, including any applications approved after November 24, 2014 under the prior requirements.
Additionally, individuals will also qualify for deferred action if they meet a second set of criteria:
- As of November 20, 2014, they have a son or daughter who is a US Citizen or Lawful Permanent Resident (green card holder);
- They have continuously resided in the United States since January 1, 2010;
- They were physically present in the United States on November 20, 2014 and at the time of filing their application;
- They have no lawful status as of November 20, 2014;
- Have a clean criminal record which is generally defined as no felony convictions, no more than two misdemeanor convictions (other than minor traffic offenses) and no significant misdemeanors (as defined in a separately issued policy memorandum on prioritization of removal cases) and they don’t fit into any other enforcement/removal priority groups as defined in a separately issued policy memorandum;and
- They present no other factors that would make a grant of deferred action inappropriate.
USCIS is directed to begin accepting applications under this new category of deferred action requirements not later than 180 days from November 20, 2014 or by May 19, 2015. Additionally, those granted deferred action under this criteria will also be given deferred action and work authorization for three year increments.
In general, both the expansion of DACA and the new category of “Deferred Action for Parents” represents an opportunity of an estimated 5 million additional hard working, contributing members of our community to come out of the shadows. However, a couple of cautionary points should be observed.
First, this is far short of immigration reform and does not grant “Status” to any recipient of deferred action. Those who qualify for deferred action are merely identified as non-priority individuals so that the administration can focus removal resources “priority” individuals (mostly threats to national security, gang members, individual with serious criminal offense convictions or multiple or significant misdemeanor offense convictions and very recently arrived individuals who are undocumented or caught at the boarder).
Deferred action is not a pathway to citizenship or legalization. Deferred action is not amnesty!
Secondly, a grant of deferred action is absolutely discretionary and even if a person meets the criteria set out above, they can be denied. All deferred action applications are evaluated on a case by case basis. There is no appeal from a denial of an application for deferred action.
Consequently is it absolutely vital that if you believe you qualify, you should seek competent and experienced legal counsel before filing your application. Find a lawyer who has significant experience with the DACA program who can bring their experienced eye (gained from successfully handling hundreds, not a handful, of successful DACA applications) to expertly evaluate and prepare your case.
Expanded Provisional Stateside Unlawful Presence Waivers.
The second policy memorandum issued on November 20, 2014 that will impact many of our clients’ lives is the expansion of the provisional stateside waiver for the unlawful presence bar.
Those who are subject to an unlawful presence bar trigger the bar by leaving the country to attend a consular appointment in an effort to “get in line”. Generally, more than fifty percent of these waivers are granted but, in the process, applicants are required to remain outside the country, separated from their families, for many months or years while their waiver is adjudicated and ultimately approved.
In 2013, USCIS amended its regulations to allow for an applicant to apply for an unlawful presence waiver and obtain a provisional approval of the waiver before they leave the country so that they aren’t separated from their families while the waiver is being adjudicated. However, this provisional stateside waiver is currently limited to beneficiaries of petitions filed by US citizen spouses.
The November 20, 2014 Stateside Provisional Waiver Memorandum directed USCIS to begin the process of amending this 2013 regulation to provide for provision stateside waivers in all family based visa applications filed where a visa number is available.
Prioritization of Removal Cases
Secretary Johnson also issued a November 20, 2014 policy memorandum directed to the immigration agencies to realign their prioritization of removal cases in a more formal, three tiered manner. In general, the agencies are to consider individuals for removal according to three priority categories:
- Priority I — Those who represent a threat to national security, boarder security and public safety (aggravated felons under the Immigration and Nationality Act, terrorists, street gang members etc).
- Priority II — Those who have been convicted of more than two misdemeanors (excluding minor traffic offenses), significant misdemeanors and recent immigration violators.
- Priority III — Those who have committed other immigration violations.
While all of this falls far short of what this nation deserves and hardly constitutes a sane immigration system, it is what we are left with given the Congress’ failure to act in any sensible fashion. Those who dislike the idea of executive action should pressure their elected members of Congress to do their job and enact comprehensive immigration reform!
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