As of today, the USCIS has revised guidelines up on its site with quite a lot of new information regarding the deferred action process, applications for which will be out on August 15. USCIS will NOT be accepting application until Aug. 15th. If you submit now, your application will be returned. The fee will be $465 as previously revealed. You can check your eligibility by referring to the chart here.
Information shared during today’s call includes the following highlights:
- Applicants – those in removal proceedings, those with final orders, and those who have never been in removal proceedings – will be able to affirmatively request consideration of deferred action for childhood arrivals with USCIS starting on August 15.
- Applicants will use a form developed for this specific purpose.
- Applicants will mail their deferred action request together with an application for an employment authorization document and all applicable fees to the USCIS lockbox.
- All applicants must provide biometrics and undergo background checks. Some applicants would need to undergo interviews.
- Fee waivers cannot be requested for the application for employment authorization and biometric collection. However, fee exemptions will be available in limited circumstances.
- The four USCIS Service Centers will review requests.
As for new information, consider the following FAQ released by USCIS:
1. Education: You do not have to currently be in school if you have your GED or high school diploma. However, if you are not in school, you must have your GED or high school diploma to qualify for the process:
To be considered “currently in school” under the guidelines, you must be enrolled in school on the date you submit a request for consideration of deferred action under this process.
Note that if you have a GED, or high school diploma, you DO NOT need to still be in school. If you do not have a high school diploma or GED, you can sign-up to take the GED and apply only after you have received your GED.
People who can get their high school diploma or GED after June 15, 2012 will still be eligible to apply.
On the Congressional stakeholder call, someone asked DHS about whether people who are in detention but the only thing they are missing is a GED or a HS diploma would still be detained and deemed ineligible to apply? DHS skirted the issue and said more info. would be provided Aug 15. There will be a process in place by which ICE will be reviewing those cases. If the persons detained meet other criteria, then they are not a priority case and wouldn’t be kept in detention in order to pursue request for review from USCIS.
2. USCIS clarified the meaning of brief departure for purposes of continuous presence:
A brief, casual, and innocent absence from the United States will not interrupt your continuous residence. If you were absent from the United States for any period of time, your absence will be considered brief, casual, and innocent, if it was before August 15, 2012, and:
- The absence was short and reasonably calculated to accomplish the purpose for the absence;
- The absence was not because of an order of exclusion, deportation, or removal;
- The absence was not because of an order of voluntary departure, or an administrative grant of voluntary departure before you were placed in exclusion, deportation, or removal proceedings; and
- The purpose of the absence and/or your actions while outside the United States were not contrary to law.
3. International travel will be allowed only with advance parole, which will only be issued for humanitarian purposes, educational purposes, or employment purposes:
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.
Note: If you are in unlawful status and/or are currently in removal proceedings, and you leave the United States without a grant of advance parole, you will be deemed to have removed yourself and will be subject to any applicable grounds of inadmissibility if you seek to return.
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.
4. Criminal Issues
What automatically disqualifies you from deferred action?
- Felony: A felony is a federal, state, or local criminal offense punishable by imprisonment for a term exceeding one year.
- Three or more misdemeanors: A misdemeanor for the purpose of this program is one for which the maximum term of imprisonment authorized is one year or less but greater than five days, and less than 90 days is spent in custody.
- Significant misdemeanor: The following offenses are no longer listed as significant misdemeanors: (a) larceny; (b) fraud; (c) obstruction of justice; (d) bribery; (e) unlawful flight from arrest, prosecution or the scene of the accident; and (f) unlawful possession of drugs. Now, USCIS is defining significant misdemeanor as:
- Regardless of the sentence imposed, 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,
- 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.
What is not a misdemeanor?
- Immigration-related offenses, e.g. immigration felonies or misdemeanors created by state laws like SB 1070, will not be treated as disqualifying felonies or misdemeanors.
- A minor traffic offense, such as driving without a license or a traffic ticket, will not be considered a misdemeanor. However, your entire offense history can be considered along with other facts to determine whether, under the totality of the circumstances, you warrant an exercise of prosecutorial discretion. It is important to emphasize that driving under the influence is a significant misdemeanor regardless of the sentence imposed, and bars you from consideration for deferred action.
- Expunged convictions and juvenile convictions will not automatically disqualify you. Your request will be assessed on a case-by-case basis to determine whether, under the particular circumstances, a favorable exercise of prosecutorial discretion is warranted. If you were a juvenile, but tried and convicted as an adult, you will be treated as an adult for purposes of the deferred action for childhood arrivals process.
Someone asked whether misdemeanors later reduced to infractions will be considered as infractions? DHS representative answered in the affirmative but also noted that every case would be considered on a case by case basis. This means that if you have criminal issues, you may want to see a good criminal lawyer about getting your case reopened and possibly getting charges reduced or dismissed.
5. You have to be out of status to request deferred action and must have had no lawful status on June 15, 2012
This mean that people who held non-immigrant status or TPS on June 15, 2012 are not eligible for deferred action if they fall out of status.
As for processing time, the DHS representative said that it would take months, but did not offer precisely how many months. Our guess is 5-9 months. Much like the present system at USCIS, which lets people track their applications, they will have a system for people to track applications through their “receipt notice.” Additionally, DHS has no independent analysis of number of people who would be eligible and the number of applications as well as complications in each case will likely impact processing time.
People will be required to apply for work permit as well as deferred action as part of a complete package, but we already knew that. This means that an I-765 will have to be filed along with the application for deferred action. The fee for this is going to be $465. There are no fee waivers available for employment authorization applications connected to the deferred action for childhood arrivals process. There are very limited fee exemptions available. Requests for fee exemptions must be filed and favorably adjudicated before an individual files his/her request for consideration of deferred action for childhood arrivals without a fee.
In order to be considered for a fee exemption, you must submit a letter and supporting documentation to USCIS demonstrating that you meet one of the following conditions:
- You are under 18 years of age, homeless, in foster care or otherwise lacking any parental or other familial support, and your income is less than 150% of the U.S. poverty level.
- You cannot care for yourself because you suffer from a serious, chronic disability and your income is less than 150% of the U.S. poverty level.
- You have, at the time of the request, accumulated $25,000 or more in debt in the past 12 months as a result of unreimbursed medical expenses for yourself or an immediate family member, and your income is less than 150% of the U.S. poverty level.
Beginning August 15, 2012 additional information on how to make your request for a fee exemption will be available on www.uscis.gov/childhoodarrivals. Your request must be submitted and decided before you submit a request for consideration of deferred action for childhood arrivals without a fee. In order to be considered for a fee exemption, you must provide documentary evidence to demonstrate that you meet any of the above conditions at the time that you make the request. For evidence USCIS will:
- Accept affidavits from community-based or religious organizations to establish a requestor’s homelessness or lack of parental or other familial financial support.
- Accept copies of tax returns, banks statement, pay stubs, or other reliable evidence of income level. Evidence can also include an affidavit from the applicant or a responsible third party attesting that the applicant does not file tax returns, has no bank accounts, and/or has no income to prove income level.
- Accept copies of medical records, insurance records, bank statements, or other reliable evidence of unreimbursed medical expenses of at least $25,000.
- Address factual questions through requests for evidence (RFEs).
8. New for those in removal proceedings:
New guidance says that everyone should affirmatively apply to USCIS, which includes individuals in removal proceedings. If you are not in immigration detention and want to affirmatively request consideration of deferred action for childhood arrivals, you must submit your request to USCIS – not ICE – pursuant to the procedures outlined below. If you are currently in immigration detention and believe you meet the guidelines you should not request consideration of deferred action from USCIS but should identify yourself to your detention officer or contact the ICE Office of the Public Advocate through the Office’s hotline at 1-888-351-4024 (staffed 9 a.m. – 5 p.m., Monday – Friday) or by email at EROPublicAdvocate@ice.dhs.gov.
10. No risk to anyone applying who does not commit fraud or misrepresentation and does not have a significant criminal history
USCIS has stated that individuals who apply and fail to prove that they qualify for deferred action will only be placed into removal proceedings if they fall into certain enforcement priorities. Last November, CIS restricted the issuance of Notices to Appear in removal proceedings to limited classes of removable individuals. This memo will continue to guide when CIS issues notices to appear. Any information submitted about parents and other family members will not be used against applicants.