The Right Immigration Attorney Makes All the Difference Let Us Handle Your Immigration Matters
The Right Immigration Attorney Makes All the DifferenceLet Us Handle Your Immigration Matters

New Jersey/New York Immigration Attorney

President Obama's Deferred Action For Childhood Arrivals

1. Q: What is deferred action?

A: Deferred action is a discretionary determination to defer removal action of
an individual as an act of prosecutorial discretion.

 

2. Q: What is deferred action for childhood arrivals?

A: On June 15, 2012, the Secretary of Homeland Security announced that certain people who came to the United States as children and meet several key guidelines may request consideration of deferred action for a period of two years, subject to renewal, and would then be eligible for work authorization.

 

3. Q: If my removal is deferred pursuant to the consideration of deferred action for childhood arrivals process, am I eligible for employment authorization?

A: Yes. Pursuant to existing regulations, if your case is deferred, you may
obtain employment authorization from USCIS provided you can demonstrate an economic necessity for employment.

 

4. Q: Does this process apply to me if I am currently in removal proceedings, have a final removal order, or have a voluntary departure order?

A: This process is open to any individual who can demonstrate he or she meets the guidelines for consideration, including those who have never been in removal proceedings as well as those in removal proceedings, with a final
order, or with a voluntary departure order (as long as they are not in immigration detention).

 

5. Q: Can I request consideration of deferred action for childhood arrivals under this process if I am currently in a nonimmigrant status (e.g. F-1, E-2, H-4) or have Temporary Protected Status (TPS)?

A: No. You can only request consideration of deferred action for childhood
arrivals under this process if you currently have no immigration status and
were not in any lawful status on June 15, 2012.

 

6. Q: What guidelines must I meet to be considered for deferred
action for childhood arrivals?


A: Pursuant to the Secretary of Homeland Security’s June 15, 2012 memorandum, in order to be considered for deferred action for childhood arrivals, you must submit evidence, including support documents, showing that you:

 

  1. Were under the age of 31 as of June 15, 2012;
  2. Came to the United States before reaching your 16th birthday;
  3. Have continuously resided in the United States since June 15, 2007, up to the present time;
  4. 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;
  5. Entered without inspection before June 15, 2012, or your lawful immigration status expired as of June 15, 2012;
  6. Are currently in school, have graduated or obtained a certificate of completion from high school, have obtained a General Education Development (GED) certificate, or are an honorably discharged
    veteran of the Coast Guard or Armed Forces of the United States; and;
  7. Have not been convicted of a felony, significant misdemeanor, three or more other misdemeanors, and do not otherwise pose a threat to national security or public safety.

 

7. Q: How do I request consideration of deferred action for childhood
arrivals?


A: To request consideration of deferred action for childhood arrivals from
USCIS, you must submit Form I-821D, Consideration of Deferred Action for Childhood Arrivals to USCIS. This form must be completed, properly signed and accompanied by a Form I-765, Application for Employment Authorization, and a Form I-765WS, Worksheet, establishing your economic need for employment. If you fail to submit a completed Form I-765 (along with the accompanying filing fees for that form, totaling $465), USCIS will not consider your request for deferred action. You may also choose to receive an email and/or text message notifying you that your form has been accepted by completing a Form G-1145, E-Notification of Application/Petition Acceptance.

 

8. Q: What documentation may be sufficient to demonstrate I meet
the guidelines for consideration of deferred action under this process?

 

A: Below are examples of documentation you may submit to demonstrate you meet the guidelines for consideration of deferred action under this process.

 

  
  

Examples of Documents to Submit to Demonstrate you Meet the Guidelines

  

 

Proof of identity

              
 
Passport     
  
Birth certificate with photo
  identification

  
School or military ID with photo       
  
Any U.S. government immigration or
  other document bearing your name and photo

 

Proof you came to U.S.
before your 16th birthday

              
 
Passport with admission stamp
  
Form I-94/I-95/I-94W  
  
School records from the U.S. schools you have attended 
  
Any Immigration and Naturalization Service or DHS document stating your date of entry (Form I-862, Notice to Appear)    
  
Travel records
  
Hospital or medical records

 

Proof of immigration status

              
 
Form I-94/I-95/I-94W with authorized stay expiration date      
  
Final order of exclusion,
  deportation, or removal issued as of June 15, 2012
 
  
A charging document placing you into removal proceedings

 

Proof of Presence in U.S.
on June 15, 2012

              
 
Rent receipts or utility bills        
  
Employment records (pay stubs, W-2 Forms, etc)
  
School records (letters, report
  cards, etc)

  
Military records (Form DD-214 or NGBForm 22)
  
Official records from a religious
  entity confirming participation in a religious ceremony

  
Copies of money order receipts for
  money sent in or out of the country

  
Passport entries
  
Birth certificates of children born
  in the U.S,
 
  
Dated bank transactions  
  
Social Security card 
  
Automobile license receipts or
  registration

  
Deeds, mortgages, rental agreement contracts  
  
Tax receipts, insurance policies

 

Proof you continuously resided in U.S. since
June 15, 2007

 

Proof of your student status at the time of requesting consideration of deferred action for childhood arrivals

              
 
School records (transcripts, report cards, etc) from the school that you are currently attending in the United States showing the name(s) of the school(s) and periods of school attendance and the current educational or grade level
  
U.S. high school diploma or certificate of completion
  
U.S. GED certificate

 

Proof you are an
honorably discharged veteran of the U.S. Armed Forces or the U.S. Coast Guard
 

              
 
Form DD-214, Certificate of Release
  or Discharge from Active Duty
    
  
NGB Form 22, National Guard Report of Separation and Record of Service 
  
Military personnel records
  
Military health records

 

9. Q: May I file affidavits as proof that I meet the guidelines for consideration of deferred action for childhood arrivals?

A: Affidavits generally will not be sufficient on their own to demonstrate that
you meet the guidelines for USCIS to consider you for deferred action for
childhood arrivals.
However, affidavits may be used to support meeting the following guidelines
only if the documentary evidence available to you is insufficient or lacking:

              
A gap in the documentation
demonstrating that you meet the five year continuous residence requirement; and
         
A shortcoming in documentation with respect to the brief, casual and innocent departures during the five years of required continuous presence.

 

If you submit affidavits related to the above criteria, you must submit two or more affidavits, sworn to or affirmed by people other than yourself, who have direct personal knowledge of the events and circumstances.

 

USCIS will not accept affidavits as proof of satisfying the following guidelines:

              
You are currently in school, have graduated or obtained a certificate of completion from high school, have obtained a general education development certificate, or are an honorably discharged veteran from the Coast Guard or Armed Forces of the United States;       
You were physically present in the United States
on June 15, 2012;
          
You came to the United States before reaching your
16th birthday;
          
You were under the age of 31 on June
15, 2012; and
      
Your criminal history, if applicable.

 

10. Q: Will USCIS consider circumstantial evidence that I have met certain guidelines?

A: Circumstantial evidence may be used to establish the following guidelines
and factual showings if available documentary evidence is insufficient or
lacking and shows that:

              
You were physically present in the United States on June 15, 2012;

              
You came to the United States before reaching your 16th birthday;

              
You satisfy the five year continuous residence requirement, as long as you present direct evidence of your continued residence in the United States for a portion of the required five-year period and the circumstantial evidence is used only to fill in gaps in the length of
continuous residence demonstrated by the direct evidence; and

              
Any travel outside the United States during the five years of required continuous presence was brief, casual, and innocent.

However, USCIS will not accept circumstantial evidence as proof of any of the following guidelines to demonstrate that you:

            
Were under the age of 31 on June 15, 2012; and

              
Are currently in school, have graduated or obtained a certificate of completion from high school, have obtained a General Education Development (GED) certificate, or are an honorably discharged
veteran of the Coast Guard or Armed Forces of the United States.

For example, if you do not have documentary proof of your presence in the United States on June 15, 2012, you may nevertheless be able to satisfy the guideline circumstantially by submitting credible documentary evidence that you were present in the United States shortly before and shortly after June 15, 2012, which under the facts presented may give rise to an inference of your presence on June 15, 2012 as well. However, circumstantial evidence will not be accepted to establish that you have graduated high school. You must submit direct documentary evidence to satisfy that you meet this guideline.

 

11. Q: How old must I be in order to be considered for deferred action under this process?

 

A: If you have never been in removal proceedings, or your proceedings have been terminated before your request for consideration of deferred action for childhood arrivals, you must be at least 15 years of age or older at the time of filing and meet the other guidelines.

If you are in removal proceedings, have a final removal order, or have a voluntary departure order, and are not in immigration detention, you can
request consideration of deferred action for childhood arrivals even if you are
under the age of 15 at the time of filing and meet the other guidelines.

In all instances, you cannot be the age of 31 or older as of June
15, 2012, to be considered for deferred action for childhood arrivals.

 

12. Q: Does “currently in school” refer to the date on which the request for consideration of deferred action is filed?

A: To be considered “currently in school” under the guidelines, you must be
enrolled in school on the date you submit a request for consideration of
deferred action under this process.

 

13. Q: Who is considered to be "currently in school” under the guidelines?

A: To be considered “currently in school” under the guidelines, you must be
enrolled in:

            
       a public or private elementary school, junior high or middle school, high school, or secondary school;

              
an education, literacy, or career training program (including vocational training) that is designed to lead to placement in postsecondary education, job training, or employment and where you are working toward such placement; or

              
an education program assisting students either in obtaining a regular high school diploma or its recognized equivalent under state law (including a certificate of completion, certificate of attendance, or alternate award), or in passing a General Educational Development (GED) exam or other equivalent state-authorized exam.

 

Such education, literacy, or career training programs include, but are not limited to, programs funded, in whole or in part, by federal or state grants. Programs funded by other sources may qualify if they are administered by providers of demonstrated effectiveness, such as institutions of higher education, including community colleges, and certain community-based organizations.

 

In assessing whether such an education, literacy or career training program not funded in whole or in part by federal or state grants is of demonstrated effectiveness, USCIS will consider the duration of the program’s existence; the program’s track record in assisting students in obtaining a regular high school diploma or its recognized equivalent, in passing a GED or other state-authorized exam, or in placing students in postsecondary education, job training, or employment; and other indicators of the program’s overall quality. For individuals seeking to demonstrate that they are “currently in school” through enrollment in such a program, the burden is on the requestor to show the program’s demonstrated effectiveness.

 

14. Q: How do I establish that I am currently in school?

A: Documentation sufficient for you to demonstrate that you are currently in
school may include, but is not limited to acceptance letters, school registration cards, letters from school or program, transcripts, report cards,
or progress reports showing the name of the school or program, date of
enrollment, and current educational or grade level, if relevant.

15. Q: If I am enrolled in a literacy or career training program, can I meet the guidelines?


A: Yes, in certain circumstances. You may meet the guidelines if you are enrolled in an education, literacy, or career training program that is designed to lead to placement in postsecondary education, job training, or employment and where you are working toward such placement. Such programs include, but are not limited to, programs funded by federal or state grants, or administered by providers of demonstrated effectiveness.

 

16. Q: If I am enrolled in an English as a Second Language (ESL) program, can I meet the guidelines?

A: Yes, in certain circumstances. You may meet the guidelines only if you are
enrolled in an ESL program as a prerequisite for your placement in postsecondary education, job training, or employment and where you are working toward such placement. You must submit direct documentary evidence that your participation in the ESL program is connected to your placement in postsecondary education, job training or employment and that the program is one of demonstrated effectiveness.

 

17. Q: If I am currently in school and USCIS defers action in my case, what will I have to demonstrate if I request that USCIS renew the deferral after two years?

A: If you are in school at the time of your request and your case is deferred
by USCIS, in order to have your request for an extension considered, you must show at the time of the request for renewal either (1) that you have graduated from the school in which you were enrolled and, if that school was elementary school or junior high or middle school, you have made substantial, measurable progress toward graduating from high school, or, (2) you have made substantial, measurable progress toward graduating from the school in which you are enrolled.

 

If you are currently in an education program that assists students either in obtaining a high school diploma or its recognized equivalent under state law, or in passing a GED exam or other equivalent state-authorized exam, and your case is deferred by USCIS, in order to have your request for an extension considered, you must show at the time of the request for renewal that you have obtained a high school diploma or its recognized equivalent or that you have passed a GED or other equivalent state-authorized exam.

 

If you are currently enrolled in an education, literacy, or career training program (including vocational training) that is designed to lead to placement in postsecondary education, job training, or employment, and your case is deferred by USCIS, in order to have your request for an extension considered, you must show at the time of the request for renewal that you are enrolled in postsecondary education, that you have obtained the employment for which you were trained, or that you have made substantial, measurable progress toward completing the program.

 

18. Q: Do brief departures from the United States interrupt the
continuous residence requirement?


A: A brief, casual, and innocent absence from the United States will not interrupt your continuous residence. If you were absent from the United States for any period of time, your absence will be considered brief, casual, and innocent, if it was before August 15, 2012, and:

 

  1. The absence was short and reasonably
    calculated to accomplish the purpose for the absence;
  2. The absence was not because of an order
    of exclusion, deportation, or removal;
  3. The absence was not because of an order
    of voluntary departure, or an administrative grant of voluntary departure
    before you were placed in exclusion, deportation, or removal proceedings; and
  4. The purpose of the absence and/or your
    actions while outside the United States were not contrary to law.

 

19. Q: Will USCIS conduct a background check when reviewing my request for consideration of deferred action for childhood arrivals?

A: Yes. You must undergo biographic and biometric background checks before USCIS will consider whether to exercise prosecutorial discretion under the consideration of deferred action for childhood arrivals process.

 

20. Q: What do background checks involve?

A: Background checks involve checking biographic and biometric information
provided by the individuals against a variety of databases maintained by DHS
and other federal government agencies.

 

21. Q: What offenses qualify as a felony?

A: A felony is a federal, state, or local criminal offense punishable by
imprisonment for a term exceeding one year.

 

22. Q: What offenses constitute a significant misdemeanor?

A: For the purposes of this process, a significant misdemeanor is a misdemeanor as defined by federal law (specifically, one for which the maximum term of imprisonment authorized is one year or less but greater than five days) and that meets the following criteria:

 

  1. Regardless of the sentence imposed, is an offense of domestic violence; sexual abuse or exploitation; burglary; unlawful possession or use of a firearm; drug distribution or trafficking; or, driving under the influence; or,
  2. If not an offense listed above, is one for which the individual was sentenced to time in custody of more than 90 days. The sentence must involve time to be served in custody, and therefore does not
    include a suspended sentence.

 

The time in custody does not include any time served beyond the sentence for the criminal offense based on a state or local law enforcement agency honoring a detainer issued by U.S. Immigration and Customs Enforcement (ICE). Notwithstanding the above, the decision whether to defer action in a particular case is an individualized, discretionary one that is made taking into account the totality of the circumstances. Therefore, the absence of the criminal history outlined above, or its presence, is not necessarily determinative, but is a factor to be considered in the unreviewable
exercise of discretion. DHS retains the discretion to determine that an
individual does not warrant deferred action on the basis of a single criminal
offense for which the individual was sentenced to time in custody of 90 days or less.

 

23. Q: What offenses constitute a non-significant misdemeanor?

A: For purposes of this process, a non-significant misdemeanor is any
misdemeanor as defined by federal law (specifically, one for which the maximum term of imprisonment authorized is one year or less but greater than five days) and that meets the following criteria:

 

  1. Is not an offense of domestic violence; sexual abuse or exploitation; burglary; unlawful possession or use of a firearm; drug distribution or trafficking; or, driving under the influence; and
  2. Is one for which the individual was sentenced to time in custody of 90 days or less. The time in custody does not include any time served beyond the sentence for the criminal offense based on a state or local law enforcement agency honoring a detainer issued by ICE.

 

Notwithstanding the above, the decision whether to defer action in a particular case is an individualized, discretionary one that is made taking into account the totality of the circumstances. Therefore, the absence of the criminal history outlined above, or its presence, is not necessarily determinative, but is a factor to be considered in the unreviewable exercise of discretion.

 

24. Q: If I have a minor traffic offense, such as driving without a license, will it be considered a non-significant misdemeanor that counts towards the “three or more non-significant misdemeanors” making me unable to receive consideration for an exercise of prosecutorial discretion under this new process?

A: A minor traffic offense will not be considered a misdemeanor for purposes of this process. However, your entire offense history can be considered along with other facts to determine whether, under the totality of the circumstances, you warrant an exercise of prosecutorial discretion.

 

Note: It is important to emphasize that driving under the influence is a significant misdemeanor regardless of the sentence imposed.

 

25. Q: Will offenses criminalized as felonies or misdemeanors by state immigration laws be considered felonies or misdemeanors for purpose of this process?

A: No. Immigration-related offenses characterized as felonies or misdemeanors by state immigration laws will not be treated as disqualifying felonies or misdemeanors for the purpose of considering a request for consideration of deferred action pursuant to this process.

 

26. Q: Will DHS consider my expunged or juvenile conviction as an offense making me unable to receive an exercise of prosecutorial discretion?

A: Expunged convictions and juvenile convictions will not automatically
disqualify you. Your request will be assessed on a case-by-case basis to
determine whether, under the particular circumstances, a favorable exercise of prosecutorial discretion is warranted. If you were a juvenile, but tried and
convicted as an adult, you will be treated as an adult for purposes of the
deferred action for childhood arrivals process.

 

27. Q: What qualifies as a national security or public safety threat?

A: If the background check or other information uncovered during the review of your request for deferred action indicates that your presence in the United States threatens public safety or national security, you will not be able to receive consideration for an exercise of prosecutorial discretion except where DHS determines there are exceptional circumstances. Indicators that you pose such a threat include, but are not limited to, gang membership, participation in criminal activities, or participation in activities that threaten the United States.

 

28. Q: If my case is deferred, am I in lawful status for the period of deferral?

A: No. Although action on your case has been deferred and you do not accrue unlawful presence during the period of deferred action, deferred action does not confer any lawful status.

 

29. Q: Does deferred action provide me with a path to permanent residence status or citizenship?

A: No. Deferred action is a form of prosecutorial discretion that does not
confer lawful permanent resident status or a path to citizenship. Only the
Congress, acting through its legislative authority, can confer these rights.

 

30. Q: Will my immediate relatives or dependents be considered for deferred action for childhood arrivals?

A: No. The new process is open only to those who satisfy the guidelines. As
such, immediate relatives, including dependents of individuals whose cases are deferred pursuant to the consideration of deferred action for childhood
arrivals process, may not be considered for deferred action as part of this
process unless they independently satisfy the guidelines.

 

31. Q: May I travel outside of the United States before USCIS has determined whether to defer action in my case?

A: No. After August 15, 2012, if you travel outside of the United States, you will not be considered for deferred action under this process. If USCIS defers action in your case, you will be permitted to travel outside of the United States only if you apply for and receive advance parole from USCIS.

 

Any travel outside of the United States that occurred before August 15, 2012, will be assessed by USCIS to determine whether the travel qualifies as brief, casual and innocent (see above).

 

Note: If you are in unlawful status and/or are currently in removal
proceedings, and you leave the United States without a grant of advance parole, you will be deemed to have removed yourself and will be subject to any applicable grounds of inadmissibility if you seek to return.

 

32. Q: If my case is deferred pursuant to the consideration of deferred action for childhood arrivals process, will I be able to travel outside of the United States?

A: Not automatically. If USCIS has decided to defer action in your case and you want to travel outside the United States, you must apply for advance parole by filing a Form I-131, Application for Travel Document and paying the applicable fee ($360). USCIS will determine whether your purpose for international travel is justifiable based on the circumstances you describe in your request. Generally, USCIS will only grant advance parole if you are traveling for humanitarian purposes, educational purposes, or employment purposes. You may not apply for advance parole unless and until USCIS defers action in your case pursuant to the consideration of deferred action for childhood arrivals process. You cannot apply for advance parole at the same time as you submit your request for consideration of deferred action for childhood arrivals. All advance parole requests will be considered on a case-by-case basis.

 

If USCIS has deferred action in your case under the deferred action for childhood arrivals process and you are subject to a final order of removal, you may request advance parole if you meet the guidelines for advance parole described above. However, once you have received advance parole, you should seek to reopen your case before the Executive Office for Immigration Review (EOIR) and obtain administrative closure or termination before you travel outside the country.

 

33. Q: If USCIS does not exercise deferred action in my case, will I be placed in removal proceedings?

A: If you have submitted a request for consideration of deferred action for
childhood arrivals and USCIS decides not to defer action in your case, USCIS
will apply its policy guidance governing the referral of cases to U.S. Immigration and Customs Enforcement (ICE) and the issuance of Notices to Appear (NTA). If your case does not involve a criminal offense, fraud, or a threat to national security or public safety, your case will not be referred to ICE for purposes of removal proceedings except where DHS determines there are exceptional circumstances. For more detailed information on the applicable NTA policy visit www.uscis.gov/NTA. If after a review of the totality of circumstances USCIS determines to defer action in your case, USCIS will likewise exercise its discretion and will not issue you a Notice to Appear.

 

34. Q: Will there be supervisory review of decisions by USCIS under this process?

A: Yes. USCIS will implement a supervisory review process in all four Service
Centers to ensure a consistent process for considering requests for deferred
action for childhood arrivals. USCIS will require officers to elevate for
supervisory review those cases that involve certain factors.

 

35. Q: Can I appeal USCIS’ determination?

A: No. You cannot file a motion to reopen or reconsider, and cannot appeal the decision if USCIS denies your request for consideration of deferred action for childhood arrivals. USCIS will not review its discretionary determinations. You may request a review using the Service Request Management Tool (SRMT) process if you met all of the process guidelines and you believe that your request was denied due to one of the following errors:

              
USCIS denied the request for consideration of deferred action for childhood arrivals based on abandonment and you claim that you did respond to a Request for Evidence within the prescribed time; or

              
USCIS mailed the Request for Evidence to the wrong address, even though you had submitted a Form AR-11, Change of Address, or changed your address online at www.uscis.gov before the issuance of the Request for Evidence.

 

Call us for a consultation

201-345-7000 or 646-233-2606

Or use our contact form.

 

 

Print Print | Sitemap
© Choi Law LLC. All Rights Reserved.

Call

E-mail

Directions