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Deferred Action for Childhood Arrivals




USCIS has announced the requirements for Deferred Action for Childhood Arrivals Process. Starting on August 15, 2012, certain individuals, who were brought to the United States through no fault of their own as young children, may begin to request consideration of deferred action for childhood arrivals. Individuals who demonstrate that they meet the requirements will be eligible to receive deferred action (relief from removal from the USA) for a period of two years, subject to renewal, and may be eligible for employment authorization. Below please find frequently asked questions and answers. If you need a legal advice or help with preparation of required forms, please contact Oksana A. Van Rooy, a licensed California attorney, at the Law Offices of Oksana Van Rooy. We are located in Orange County, CA.

What is deferred action for childhood arrivals?
When an individual is granted a “deferred action,” it means the Department of Homeland Security has deemed such person to be a low priority for immigration enforcement and has chosen to exercise its discretion and not deport the individual. Deferred action does not confer lawful status upon an individual. Deferred action for childhood arrivals provides only a temporary relief from enforcement and may be revoked at any time. An individual whose case is deferred will not be considered to be accruing unlawful presence in the United States during the period deferred action is in effect, but deferred action does not excuse individuals of any previous or subsequent periods of unlawful presence.
If the removal is deferred per consideration of deferred action for childhood arrivals process, am I eligible for employment authorization?
Yes, an individual whose case has been deferred is eligible to receive employment authorization from USCIS for the period of deferred action, provided he or she can demonstrate an economic necessity for employment.
Do I need a lawyer to help request deferred action?
As with any other issue, it is always helpful to contact a law firm or an attorney for a legal advice before you prepare and submit your request for deferred action. This is a “one-shot” opportunity. You need to get it right; if you get a denial, it is final and cannot be appealed.
Who is eligible for deferred action?
An individual may request consideration of deferred action for childhood arrivals if such individual:

  1. Was under the age of 31 as of June 15, 2012;
  2. Came to the United States before reaching his or her 16th birthday;
  3. Has continuously resided in the United States since June 15, 2007, up to the present time;
  4. Was physically present in the United States on June 15, 2012, and at the time of making a request for consideration of deferred action with USCIS;
  5. Entered without inspection before June 15, 2012, or his or her lawful immigration status expired as of June 15, 2012;
  6. Is currently in school, has graduated or obtained a certificate of completion from high school, has obtained a general education development (GED) certificate, or is an honorably discharged veteran of the Coast Guard or Armed Forces of the United States; and
  7. Has not been convicted of a felony, significant misdemeanor, three or more other misdemeanors, and does not otherwise pose a threat to national security or public safety.

When the case is deferred, is the person in lawful status for the period of deferral?
No. Even when action has been deferred and the individual does not accrue unlawful presence during the period of deferred action, deferred action does not confer any lawful immigration status. It does not provide a path to a green card or citizenship.
Can eligible individual request deferred action for his or her immediate relatives?
No. One family member cannot request deferred action on behalf of another. Immediate relatives must independently satisfy the guidelines and must submit their own request.
Are there any restrictions as to age of the individual applying for deferred action under this process?
Yes.

  • If the person has never been in removal proceedings, or proceedings have been terminated before the request for consideration of deferred action for childhood arrivals, the individual must be at least 15 years of age or older at the time of filing and meet the other guidelines.
  • If the person is in removal proceedings, has a final removal order, or has a voluntary departure order, and is not in immigration detention, he or she can request consideration of deferred action for childhood arrivals even if he or she is under the age of 15 at the time of filing and meet the other guidelines.
  • In all instances, the individual cannot be the age of 31 or older as of June 15, 2012 to be considered for deferred action for childhood arrivals.

Is expedited processing available?
No.
May the person travel outside of the United States before USCIS has determined whether to defer action?
No. After August 15, 2012, if the person travels outside of the United States, he or she will not be considered for deferred action under this process. If USCIS defers action, the individual will be permitted to travel outside of the United States only if he or she applies for and receives advance parole from USCIS.

Warning: If the person is in unlawful status and/or is currently in removal proceedings, and such person leaves the United States without a grant of advance parole, he or she will be deemed to have removed himself or herself and will be subject to any applicable grounds of inadmissibility if such person seeks to return. Even with advanced parole, there is a risk that by departing the country, immigrants who were unlawfully present for more than 180 days after their 18th birthday could have problems re-entering the country or obtaining green card in the future.

May the person travel outside of the United States if USCIS has decided to defer action?
Not automatically. The individual has first to apply for advance parole by filing a Form I-131, Application for Travel Document and paying the applicable fee. There are many restrictions and requirements as to who and why may be permitted to obtain advance parole. You are strongly encouraged to consult an attorney before you submit such request. Even when you receive advance parole, in certain situations you may need to do additional steps and file additional documents before you travel outside the U.S.
What evidence must be submitted with a request for deferred action?
The type of evidence varies depending on eligibility requirements. Please contact our lawyers in Orange County, California, if you need advice on specifics of required documentation.
Can an individual with a conviction for a felony offense, a significant misdemeanor offense, or multiple misdemeanors receive a deferral under this new process?
No. A person who has been convicted of a felony offense, a significant misdemeanor offense, or three or more other misdemeanor offenses not occurring on the same date and not arising out of the same act, omission, or scheme of misconduct, will not be considered for deferred action under the new process except where DHS determines there are exceptional circumstances.
What offenses qualify as a felony?
A felony is a federal, state, or local criminal offense punishable by imprisonment for a term exceeding one year.
What constitutes a misdemeanor?
For the purposes of this process, a misdemeanor is any federal, state, or local offense for which the maximum jail term is one year or less but more than five days. There are also some additional restrictions, as well as there are exceptions.
What constitutes a significant misdemeanor?
This is any misdemeanor for which an individual received a sentence of more than 90 days in jail, not including suspended sentences and time held pursuant to an immigration detainer. Regardless of the sentence imposed, it is also any misdemeanor involving domestic violence; sexual abuse or exploitation; burglary; driving under the influence; unlawful possession or use of a firearm; and drug distribution or trafficking.
Can individuals currently in a valid nonimmigrant status or in a Temporary Protected Status request consideration of deferred action for childhood arrivals?
No. A person can only request consideration of deferred action for childhood arrivals under this process if he or she currently has no immigration status and was not in any lawful status on June 15, 2012.
What happens if USCIS finds supporting evidence insufficient?
If U.S. Citizenship and Immigration Services is unable to determine whether or not individual qualifies for deferred action, USCIS may issue a Request for Evidence asking to submit additional documentation. If the individual does not provide requested evidence within the stated time, the request for deferred action may be denied.
How long will the period of deferred action last?
Per current regulations, deferred action will be granted for a period of two years, after which eligible individuals may request an extension. At this time, USCIS states that as long as an individual was under the age of 31 on June 15, 2012, he or she should be eligible for renewals. All requests for renewals will be considered on a case-by-case basis.
If the individual’s period of deferred action is extended, does he or she need to re-apply for an extension of the employment authorization?
Yes. Upon deference of action for additional time beyond the initial two years, the person will need to request an extension of the employment authorization.
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