Siskind Susser DACA FAQ by gsiskind

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                               By Greg Siskind (

On June 15, 2012 President Obama announced he was ordering the Department of Homeland Security
to not deport as many as a million young illegally present immigrants and allow them to apply for work
cards. The policy is essentially a way to implement much of the DREAM Act by a form of action called
“deferred action.”

The following are answers to questions that many may have regarding this important news.

What is “deferred action”?

Deferred action is the indefinite delay of removal proceedings based on prosecutorial discretion. An
individual with deferred action is not considered to be in a lawful status, but such individuals may
receive employment authorization if they can demonstrate “an economic necessity for employment”,
something that has traditionally not been difficult to show. Deferred action does not wipe away any
prior periods of unlawful presence in the US, but a deferred individual does not accrue additional
unlawful presence time during the time deferred action is in effect.

Who is eligible for the new benefit?

An applicant must be someone who

   -   Entered the US before age 16
   -   Was under the age of 31 on June 15, 2012
   -   Was in the US on June 15, 2012
   -   Has been continuously residing in the US since June 15, 2007
   -   Entered the US without inspection before June 15, 2012 or entered lawfully but whose legal
       status expired as of June 15, 2012
   -   Is currently in school, has graduated or obtained a certificate of completion from high school or
       received a general education development (GED) certificate or has been honorably discharged
       from the Coast Guard or Armed Forces of the United States

How old must a person be to apply for deferred action?

If an applicant has never been in removal proceedings or removal proceedings were terminated before
applying for deferred action, the applicant must be at least 15 years of age at the time of filing.
If the applicant is in removal proceedings or has a final order of removal or has a voluntary departure
order AND is not in detention, deferred action can be requested even if the applicant is under the age of
15 at the time of filing.

What would disqualify someone?

Aside from an applicant not being able to document that he or she meets the above criteria, those who
have committed a felony, a significant misdemeanor, three or more other misdemeanors or otherwise
pose a threat to national security or public safety are ineligible.

What if I’m currently in removal proceedings or have already been ordered removed or have a
voluntary departure order?

These alone won’t keep someone from benefiting from deferred action as long as the applicant is not in
immigration detention. The application process would be filed the same way. For those in detention, a
request must be made through ICE – not USCIS – under a different procedure. Detainees should identify
themselves to their detention officers to request deferred action or call the ICE Office of the Public
Advocate at 1-888-351-4024 (open Monday through Friday 9 am to 5 pm) or by email at

How long will deferred action be granted?

Deferred action grants will be conferred for two years at a time. Every two years, individuals can request
renewal of deferred action as well as an extension of work authorization. Applicants no longer need to
be under 31 at the time of an extension.

How does an applicant prove he or she was present in the US before turning 16 years old?

Applicants can provide financial, medical, school, employment and military records. Applicants can also
submit other documents that show an applicant’s age on the date of entry to the US. Circumstantial
evidence can be used in this category where the suggested documentary evidence is insufficient or
lacking. However, circumstantial evidence cannot be used to document an applicant’s age or meet the
education requirement.

How does an applicant prove that he or she was physically present in the US on June 15, 2012?

Applicants can provide financial, medical, school, employment and military records. Applicants can also
submit other documents that show the applicant’s name (and/or biographical information) and the June
15, 2012 date. Circumstantial evidence can also be used in this category. Therefore, if an applicant can
show presence in the US shortly before and after June 15, 2012, USCIS can consider such evidence.

What documents can applicants present to prove they resided in the US for five years before June 15,

Applicants can present financial, medical, school, employment and military records. Applicants can also
submit other documents providing the applicant’s name (and/or biographical information) and dates
within this five year period. Circumstantial evidence can also be used in this category, provided that (1)
the above direct evidence of continuous residence has been used to prove at least a portion of the five
years and (2) the circumstantial evidence is only used to fill in gaps in the five years that were not
covered by the direct evidence. Affidavits may also be used to fill in gaps in the five years of continuous
residence, but applicants relying on them should be prepared to submit at least two from individuals
who have direct personal knowledge of the applicant’s circumstances.

What documentation can be used to show an applicant is currently in school, has a GED or has
graduated from high school?

Diplomas, GED certificates, report cards and school transcripts can be provided among other evidence.

What does it mean to be “currently in school”?

“Currently in school” means enrolled in school on the date you submit a request for consideration of
deferred action. USCIS has not defined the term “enrolled” and it is not clear if that would mean
applicants are not eligible to apply during the summer before they have registered for the new school
year. If registration for the following school year happens while the student is still enrolled, this should
not be an issue. Also, pursuing a GED in a state or federally-funded preparation class is sufficient to meet
this requirement.

What documentation can be provided to show honorable discharge from the Coast Guard or Armed

Applicants can provide a report of separation form, military personnel records and military health
records, as well as any other documents the applicant believes can show the honorable discharge.

How does a person file for deferred action under the childhood arrivals program?
Beginning August 15, 2012, applicants will file with USCIS a deferred action application form (not
released as of the time of this writing) and, if desired, an application for employment authorization.
USCIS appears to be developing a new employment authorization application specifically for this
program. Applicants will also be subject to background checks and will have to provide biographic and
biometric information including being fingerprinted and photographed.

How much does the application cost?

The application process (deferred action plus employment authorization) will cost $465. Once granted,
the fee to apply for a travel document is $360. Fee waivers are not available, but there are very limited
fee exemptions available. Those seeking fee exemptions must provide a letter and supporting
documents showing the applicant meets one of the following conditions:

       The applicant is under 18 years of age, homeless, in foster care or otherwise lacking any
        parental or other familial support, and (if possessing any income) the applicant’s income is less
        than 150% of the U.S. poverty level.

       The applicant cannot care for himself or herself due to a serious, chronic disability and (if
        possessing any income) the applicant’s income is less than 150% of the U.S. poverty level.

       The applicant, at the time of the request, has accumulated $25,000 or more in debt in the past
        12 months as a result of unreimbursed medical expenses for himself or herself or an immediate
        family member, and (if possessing any income) the applicant’s income is less than 150% of the
        U.S. poverty level.

Applicants seeking a fee exemption are going to have to submit substantial evidence to justify the
request. For example, affidavits from community-based or religious organizations can be submitted to
show someone is homeless or lacks family financial support. Tax returns, bank statements and pay stubs
can show income level. Medical records can also help.

If seeking a fee exemption, the fee exemption must be submitted and approved before the applicant
may submit a request for deferred action for childhood arrivals without the required fee.

What types of law enforcement actions will disqualify an applicant?

Anyone with a conviction for a felony, a significant misdemeanor, three or more other misdemeanors
not occurring on the same date and not arising out of the same act, or who otherwise poses a threat to
national security or public safety will be barred from the program, except where USCIS determines there
are exceptional circumstances All applicants will be subject to background checks including
Felonies are criminal offenses punishable by jail time of more than one year. According to USCIS,
significant misdemeanors must have a maximum term of imprisonment of one year and a minimum of
five days and (1) be for 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) be an offense
where the applicant was sentenced to time in custody of more than 90 days. Suspended sentences are
not considered to be time served in custody. In any case, USCIS has discretion to deny deferred action
even when an individual is sentenced to custody of 90 days or less. The decision whether to defer
action is, according to USCIS, “an individualized, discretionary one that is made taking into account the
totality of the circumstances.”

Minor traffic offenses such as driving without a license will not be considered misdemeanors under the
deferred action program. However, a person’s broad history of offenses can be reviewed in determining
whether exercising prosecutorial discretion is warranted.

According to DHS, “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.”

Expunged and juvenile convictions won’t automatically disqualify an applicant. This is more liberal than
normal immigration rules which ignore expungements, but note that applications will still be reviewed
on a case by case basis to see if deferred action is warranted. Juveniles tried as adults will be treated as
adults for purposes of determining if they have a disqualifying conviction.

The rules also allow for a denial when a person poses a national security or public safety threat. This
might include gang membership, participation in criminal activities, or participation in activities deemed
threatening to the US.

Will applying for deferred action put my parents or other relatives at risk?

USCIS has noted in its guidelines that it is not sharing information with Immigration and Customs
Enforcement (ICE) or US Customs and Border Protection (CBP) about applicants unless the applicant has
committed fraud in the application process, has a criminal history or otherwise poses a national security
concern. This same policy applies to family members of the deferred action applicant.

What if my case is denied?

If the case is denied for reasons not related to criminal activity, fraud or posing a threat to national
security or public safety, USCIS will not refer the matter to ICE except where DHS believes exceptional
circumstances exist. Others could risk placement in removal proceedings.
Can denied cases be appealed?

No. Denied applicants can, however, request USCIS review of the case if USCIS denied based on an
abandonment of the case and the applicant believes he or she responded in a timely manner to a
request for evidence. Also, a request for review can be submitted if USCIS mailed the request for
evidence to the wrong address even though the applicant had completed an AR-11 Change of Address

Will beneficiaries of deferred action be able to travel outside the US?

While the deferred action application is pending, travel will not be permitted and those who travel after
August 15, 2012 and before the granting of deferred action will not be granted deferred action.

After the granting of deferred action, applicants will be permitted to apply for advance parole
documents which will allow for travel. Note that those in removal proceedings who leave the US without
parole documents will be deemed to have removed themselves.

Unlike adjustment of status cases where advance parole documents are routinely granted for any bona
fide purpose, USCIS has more narrowly defined eligibility and has stated that applicants must be
“traveling for humanitarian purposes, educational purposes, or employment purposes.”

What if I have been outside the US for short periods during the five year residency period?

USCIS will look at absences, and if they consider them brief, casual, or innocent, the absences will be
excused. This analysis only applies to trips before August 15, 2012. Trips will be considered brief, casual
and innocent if all of the following are true:

    1. The trip was short and reasonably calculated to accomplish the purpose of the absence. For
       example, if you left to attend a funeral, a multi-month absence might be a problem.

    2. The absence was not because of an order of exclusion, deportation or removal.

    3. The absence was not because of either an administrative or immigration court order of
       voluntary departure.

    4. The purpose of the trip and your actions while outside the US were not illegal.

The burden will be on applicants to prove a trip was brief, casual and innocent. While affidavits are
generally not accepted on their own in deferred action cases, they can be used to show that an absence
was brief, casual or innocent. At least two affidavits would need to be submitted from individuals with
direct knowledge of an applicant’s circumstances. Circumstantial evidence is also permitted here.
Will an applicant accrue unlawful presence while the application is pending or after it is approved?

For those over 18 at the time of filing the application, accumulation of unlawful presence will continue
while the application is pending. That’s important because a person might accrue enough unlawful
presence to lead to three or ten year unlawful presence bars in the future. If an applicant is under 18
while the application is pending, no unlawful presence will accumulate. If a person turns 18 while the
application is pending, no new unlawful presence will accrue.

After the application is approved, no unlawful presence will accrue, but note that the approval won’t
excuse previously accrued unlawful presence.

Am I considered “legal” after I get deferred action?

No. Those with deferred action won’t face deportation, won’t accrue unlawful presence and can
potentially obtain employment authorization, but they are not considered in a lawful status just because
deferred action has been granted.

Can I get a green card?

Deferred action does not in and of itself lead to the granting of a green card. If an applicant is otherwise
eligible for a green card, there may be a possibility of using advance parole to acquire a green card via
consular processing. However, this is not entirely clear yet.

Will family members of an approved deferred action applicant receive any benefits?

No. Only those who meet the guidelines can apply for deferred action and dependents won’t get any

Who can assist with filing a deferred action application?

USCIS and ICE have strict rules regarding who can assist with preparing and filing applications. Only
attorneys and representatives of specially approved non-profit organizations may do so. USCIS has
warned the public not to work with so called “notarios” as such individuals are engaged in the
unauthorized practice of law, a crime in every state. Individuals holding themselves out as immigration
consultants are also violating unauthorized practice of law statutes in Tennessee, Arkansas and
Mississippi. Furthermore, to the extent a notario or immigration consultant supplies false statements or
documentation, law enforcement authorities may pursue criminal charges against an applicant as well
as the notario/consultant. Deportation is a likely course of action in such cases.

Will applicants with pending asylum or cancellation of removal cases be considered to be in unlawful
status on June 15, 2012?

Yes. Essentially, this means that those applicants will still be eligible to apply for deferred action,
assuming they meet all of the other criteria.

Are applicants who had their deportation cases closed under the prosecutorial discretion policy
eligible for deferred action?

Yes. Also, applicants who declined an offer of administrative closure under the case-by-case
prosecutorial discretion review process are eligible for deferred action.

Can deferred action be requested by those who don’t meet the criteria?

In theory, yes. Deferred action is not a new process and USCIS always has the authority to grant
deferred action on a case by case basis. What is new is that USCIS has indicated that those who meet the
new criteria will generally be considered qualified for deferred action.

What should applicants about to be removed from the US do?

Those applicants should immediately contact the Law Enforcement Support Center hotline at 1-855-448-
6903 (a 24 hour/7 day a week phone line) or the ICE office of the Public Advocate at 1-888-351-4024
(staffed weekdays between 9 am and 5 pm) or email

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