Deferred Action for DREAMERS: All Aboard

As discussed on my blog previously, as of the date of this post (August 14, 2012) the Obama administration has begun accepting applications for Deferred Action status for certain non-U.S. citizens who came to the United States under the age of 16.  Those that qualify will be granted work authorization and a temporary promise not to be removed from the United States (but NOT a green card!)  Dreamers will then have to re-apply in two years time.  The application forms (I-821D, I-765 and I-765WS) can be accessed here, here and here.  The application fee is $465.00.

Who Qualifies and What Proof Must I Submit?

Outlined below are the requirements for qualifying for Deferred Action, some additional explanation and suggested documents to submit as proof:

1. Came to the United States under the age of sixteen.

(Submit copies of passport, birth certificate, I-94 Card, school records, medical records)

2. Continuously resided in the United States for at least five years as of June 15, 2012, and were present in the United States on June 15, 2012.

(The government wants to see that applicants resided in the United States for the five years preceding President Obama’s announcement: 6/15/2007-6/15/2012.  Be creative — taxes, utility bills, school records, a lease, medical records, etc.  The more the better –pile it on.  Note that short trips outside the United States should not be a problem although extended travel outside the United States might disrupt “continuous residence.”  Those with concerns about their travel history should consult with an attorney before applying.) 

3.  Were physically present in the United States on June 15, 2012, and at the time of making your request for consideration of Deferred Action with USCIS.

(This is a confusing way to say the government also wants proof of residency AFTER Obama’s announcement, until the date of application.  See #2 above, for suggested proof.)

4. Graduated from high school or are currently in school, obtained a GED, or have been honorably discharged from the Coast Guard or Armed Forces of the United States.

(Submit school records–report cards, diplomas, transcripts, or evidence of military service)

5. Have not been convicted of a felony offense, a significant misdemeanor offense, multiple misdemeanor offenses, or otherwise pose a threat to national security or public safety.

(Anyone with criminal convictions, or arrests, should consult an attorney before applying for Deferred Action status.  Of note, the Obama Administration has stated that it will consider juvenile (a/k/a “youthful offender”) convictions on a “case-by-case” basis — meaning some  applicants who committed crimes at an early age could be denied Deferred Action, despite the traditional view that crimes committed by minors are not “convictions” for immigration law purposes.)

6. Are under 31 as of June 15, 2012

(Passport, birth certificate)

7. Entered without inspection before June 15, 2012, or your lawful immigration status expired as of June 15, 2012.

(In other words, one cannot be in lawful status–as a student, for example, and apply for Deferred Action.)

Concerns Remain

As I discussed months ago, legitimate concerns exist regarding whether information submitted by Dreamers will be accessible by different agencies within the government.  Moreover, no one can say what will happen to the program if President Obama is not re-elected.  In response to the first of these concerns, the Obama Administration has tried to assure the public that in most cases, information submitted by Dreamers will not be shared with Immigration & Customs Enforcement (ICE).  One can only take the Administration at its word for now.  As for what might happen if there is a Romney Presidency, one can only speculate.

Conclusion

This is obviously an exciting time for many young people in the United States who have been waiting years for a chance to gain some sort of “status.”  That excitement should be balanced with a realistic view towards what Deferred Action status actually is, and isn’t.

Please do not hesitate to contact my office by phone (212 901-3799) or email (michael@mzglaw.com) with any questions about the Deferred Action application process.