The President and Department of Homeland Security have finally announced that through the exercise of prosecutorial discretion, eligible young people who are currently undocumented, were brought to the U.S. as young children and do not pose a national security or public safety risk (commonly referred to as “DREAMERS”) will be eligible to receive “deferred action” for two years, while being able to apply for a Employment Authorization Document (allowing these young people to work and obtain social security numbers) and possibly even travel. The deferred action will offer relief from removal from the U.S. or from entering removal proceedings for a period of two years and will be subject to renewal.
Under the new DHS directive, an individual must prove through verifiable documentation that he or she meets the following criteria in order to be eligible for deferred action:
- Came to the U.S. under the age of sixteen;
- Has continuously resided in the U.S. for a least five years and is currently present in the United States;
- Is currently in school, has graduated from high school, has obtained a general education development (“GED”) certificate, and/or is an honorably discharged veteran of the Coast Guard or Armed Forces of the United States;
- Has not been convicted of a felony offense, a significant misdemeanor offense, multiple misdemeanor offenses, or otherwise poses a threat to national security or public safety; and
- Is not above the age of thirty.
In addition to the above, the individual must also complete a background check. Individuals, who make a request to USCIS and are not subject to a final order of removal, must be 15 years old or older.
‘Deferred Action’ is a general term which means that a discretionary determination is being made to defer the decision of whether or not to remove an individual from the U.S. under DHS’s use of prosecutorial discretion. Deferred action stops the clock on the accrual of unlawful presences but does not absolve an individual’s previous or subsequent periods of unlawful presence. Also, those in removal proceedings but subject to deferred action are eligible to apply for the EAD card.
Individuals who are not in already in removal proceedings or who are subject to a final order of removal will need to submit a request for a review of their case and supporting evidence to USCIS. Details of this process are still being developed. DO NOT SUBMIT ANY REQUESTS AT THIS TIME. USCIS and ICE are expected to announce the procedures in the coming weeks and are expected to fully implement the program within 60 days.
For those in removal procedures and those who have already been ordered removed, ICE will also announce their procedures to request a review of their case. For individuals who are in removal proceedings and have already been identified as meeting the eligibility criteria as part of ICE’s case-by-case review, ICE will immediately begin to offer deferred action for a period of two years, subject to renewal.It is important to note that deferred action DOES NOT CONFER LEGAL STATUS AND IS NOT A PATH TO LEGAL PERMANENT RESIDENCE. Deferred Action is part of an Executive Order to help young people who are believed to be productive members of our society and consider themselves American in every sense of the word. It is hoped that while the Executive Order does allow these individuals to remain in the U.S., Congress will follow suit and finally pass the DREAM Act or enact comprehensive immigration reform.