Monday, June 18, 2012

President Obama has announced that he is expanding the eligibility criteria for “deferred action” to include individuals who would be protected by the DREAM Act. Even though the DREAM Act has not become law yet, this new policy will prevent the unjust deportation of individuals who were brought to the United States at a very young age and who think of this country as their only home. Individuals who are granted deferred action are entitled to apply for work authorization.

This is not a new law, nor is it “immigration reform.” Deferred action has existed for years. President Obama has merely expanded, as a matter of policy, the eligibility criteria for deferred action to include DREAMers. While this is a significant benefit, it does not give individuals status or allow them to petition family members, vote in elections, etc.; individuals granted deferred action are still out of status and are still considered undocumented aliens. However, they will stop accruing unlawful presence and, if they can show economic necessity, they will also be able to obtain a work permit. 

Individuals otherwise eligible under these new criteria can apply for deferred action even if they are currently in removal proceedings, are in immigration detention, or have already been ordered removed by an Immigration Judge. Individuals who are not in detention and have never been in proceedings can also apply, but affirmative application procedures for these individuals have not yet been been implemented.

This new policy was announced on June 15, 2012. However USCIS has announced that they will not have  procedures in place to accept and process affirmative applications for approximately 60 days. This means that applications for individuals who are not in detention and who have never been in removal or deportation proceedings cannot be filed until approximately the middle of August, 2012. Individuals currently in detention and/or in removal proceedings should consult with their attorney regarding this new policy.

Since deferred action is not a new benefit. Since the expanded eligibility criteria are known, evidence and other information required for the application can be prepared in advance so that the application itself can be filed the moment USCIS starts accepting affirmative applications. However, those individuals needing to submit defensive applications (because they are currently in detention or in removal proceedings or have an outstanding Removal Order) will need to consult with their attorney right away. The policy is now in place so individuals needing to submit defensive applications should be able to do so immediately.

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