FAQ’S ON DREAM’ers DEFERRED ACTION/WORK
                AUTHORIZATION PROCESS

           By Michael J. Gurfinkel, Esq.

    On June 15, 2012, Homeland Security Secretary Janet Napolitano announced that “effective immediately,” certain young people would be eligible for “Deferred Action” (relief from removal) and work authorization, provided they meet certain eligibility requirements:

1.    Be between the ages of 15 and 30, and entered the U.S. before their 16th birthday.

2.    Were physically present in the U.S. on June 15, 2012;

3.    Resided continuously in the U.S. for at least 5 years before June 15, 2012;

4.    Have not been convicted of a felony, a significant misdemeanor, or multiple minor misdemeanors, or otherwise pose a threat to public safety or national security; and

5.    Be currently enrolled in school, graduated from high school, have a GED certificate, or are an honorably discharged veteran.

This relief would be available to people who: (a) are currently in removal proceedings; (b)have a final order of deportation/removal against them; or (c) have never been in removal/deportation proceedings.

Already, people have many questions about who is eligible, how and when to apply, what are the risks and benefits, etc.  Below are some frequently asked questions, and answers.  However, this Deferred Action program was only just announced on June 15, 2012, and even the Department of Homeland Security (DHS) is still figuring out how to implement this policy and process deferred action requests.  Some of the responses below are my own opinions, based on currently available information.  However, things could change, once DHS provides further guidance.

1.    Q: Should I submit my request for deferred action and work authorization right now?

A: The answer is NO.  Although Secretary Napolitano’s memo was supposed to be “effective immediately,” DHS was given 60 days within which to actually implement the application process.  The United States Citizenship and Immigration Services’ (USCIS) website also cautions that, “This application process is not yet available.  If you apply early, your application will be rejected.”  Accordingly, since Secretary Napolitano’s directive gives USCIS 60 days to create a process to accept these requests, we would need to wait for additional updates and guidance, before submitting a request.

2.    Q: What if I am already in removal proceedings.  Should I submit already a request for deferred action?

A: If a person is already in removal proceedings and is about to be removed/deported, I would say that he or she should make the request for deferred action now, along with a request that Immigration and Customs Enforcement (ICE) exercise “prosecutorial discretion”.  In fact, DHS has stated that if the person is in removal proceedings right now, and meets the eligibility requirements, “ICE will immediately begin to offer deferred action for a period of two years, subject to renewal”.  You definitely want to avoid a situation where a person is potentially eligible for this deferred action, but then is removed/deported while waiting for DHS to come up with further guidance.  This is because once you’re sent home, you may not be eligible for this benefit.

3.    Q: If I’m not yet in removal proceedings, should I go ahead and apply for deferred action now?

A: If you are not yet in removal proceedings, you should not affirmatively apply for deferred action at this time.  This is because DHS has already said that it is still creating the process and procedure to accept these requests.  Besides, you are not yet “in danger” of being removed, (unlike people who are already in removal proceedings).

4.    Q: Since this deferred action will only give a “work permit,” is it advisable to have my 10-year old child apply?

A: According to the USCIS website, the applicant “must be 15 years or older” to make a deferred action request if they are “not subject to a final order of removal”.  We will need to await further guidance for children under 15 who are subject to a final order of removal.  But for now, since a 10-year old can’t work anyway, we need to await further guidance and instruction from DHS.

5.    Q: I think my child is eligible for deferred action but I am not.  If he applies, will I be at risk and will DHS come after me?

A: It remains to be seen what DHS’s policy will be towards parents of eligible DREAM’ers.  But I can’t imagine DHS allowing a child to remain in America, while deporting/removing his or her parent.  How will that child survive, and who will take care of that child?  It would be very cruel to separate the child from his or her parents.

In addition, there are many instances where people submit petitions or applications for immigration benefits for TNT relatives, and DHS has left alone those TNT relatives.  For example, there are many green card holders who submit naturalization applications in order to petition a TNT spouse, parent, child, etc.  Although these relatives may be listed on the naturalization application, USCIS usually doesn’t “go after” those relatives.  Similarly, citizens and immigrants file petitions for TNT relatives who are in the U.S., and again, USCIS does not go after these petitioned relatives.

Moreover, when Section 245(i) was enacted (which was a law that benefited TNTs), USCIS had repeatedly stated that it would not use Section 245(i) filings to track down and deport those aliens who were “grandfathered” under Section 245(i).

6.    Q: What would happen to deferred action if Obama loses the upcoming election?

A: While it is possible that if Obama lost the next election, Mitt Romney could conceivably decide to end this program, and have ICE “go after” all those people who applied.  News reports indicate that, so far, Romney has declined to address the question of whether he would reverse President Obama’s decision to end the deportation of some young undocumented immigrants.  However, he did say that, “I believe the status of young people who come here through no fault of their own is an important matter to be considered and should be solved on a long-term basis so they know what their future would be in this country”.  Romney also said that he would consider supporting a yet to be introduced “Dream Act” from Senator Marco Rubio, that deals with young undocumented immigrants in a somewhat similar way to Obama’s recently announced deferred action program.  That Dream Act legislation would be a law passed by Congress, rather than a policy memorandum from DHS.  So it seems that Romney would be in favor of some kind of immigration law benefiting young people.

In a future article, I will discuss more FAQ’s about this deferred action policy for DREAM’ers.  However, as you can see, there are still many questions that need to be clarified, and I would definitely suggest that you seek the advice of a reputable attorney who can guide you on the proper way of preparing and submitting a deferred action request, once USCIS starts accepting those applications.

Michael J. Gurfinkel is licensed, and an active member of the State Bars of California and New York. All immigration services are provided by, or under the supervision of, an active member of the State Bar of California. Each case is different. The information contained herein (including testimonials, “Success Stories”, endorsements and re-enactments) is of a general nature, and is not intended to apply to any particular case, and does not constitute a prediction, warranty, guarantee or legal advice regarding the outcome of your legal matter. No attorney-client relationship is, or shall be, established with any reader.

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