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USCIS Releases Deferred Action Data and Updates Guidelines

More than 82,000 deferred action requests have been accepted by the USCIS since the program was implemented on August 15, 2012. Although only 29 requests have been completed as of September 13, 2012, 1,660 requests are awaiting review. More than 63,000 biometrics appointments have been scheduled so far.

Although the first few decisions were made rather quickly, officials still estimate that final determinations could take between four and six months.

The USCIS also recently updated its guidelines in response to additional inquiries regarding the policy and the procedure.

One of the new FAQs should give some measure of assurance to employers who may be asked for employment verification by deferred action applicants to support their request. It states that employers may, as they deem appropriate, give documentation verifying such employment.

Except when there is evidence of egregious violations of criminal statutes or widespread abuses, that information would not be shared with the Immigration and Customs Enforcement (ICE) for civil immigration enforcement purposes under the provision of Immigration and Nationality Act making the employment of unauthorized aliens unlawful.

Employment records can be submitted by deferred action applicants to prove physical presence on June 15, 2012 and continuous residence for five years beginning June 15, 2007.

The USCIS also addressed the question of whether one must document presence in the U.S. for every day or every month of the 5-year period. The updated guidelines state that the requestor must account for as much of the period as reasonably possible. Although direct evidence of presence for every day or month is not required, it would be helpful if there is evidence of residence during at least each year of the period. Gaps in the documentation may raise doubts as to continued residence and result in a request for evidence.

The requestor may submit two or more affidavits of third parties to explain gaps in his continued residence. Note that the affidavits cannot be used to establish the continuous residence requirement itself.

The USCIS also clarified item 9 of Form I-765 Application for Employment Authorization that is filed with a deferred action request. The item asks the applicant to list all Social Security numbers that the applicant has ever used. The USCIS explained that the applicant must list those Social Security numbers that were officially issued to him by the Social Security Administration.

The updated guidelines also clarify that if an individual travels outside of the United States after August 15, 2012, he would not be considered for deferred action as a childhood arrival. He must first be granted deferred action and applied for and received advance parole before he may travel outside of the U.S. Travels before August 15, 2012, on the other hand, will be assessed in terms of whether they were brief, casual and innocent or whether they break continuous residence.

If the deferred action request has been approved, the individual may apply for advance parole if he wants to be able to travel outside the United States. This is done by filing Form I-131 Application for Travel Document, and paying the filing fee of $360. The applicant must indicate the circumstances for which international travel is sought. Advance parole is generally granted only when the travel is for humanitarian, educational or employment purposes.

Meanwhile, as the deferred action program moves forward, the Obama administration has decided to exclude its recipients from the scope of the Affordable Care Act, like other undocumented immigrants. According to federal officials, individuals granted deferred action are not “lawfully present” residents under the health care reform law who would otherwise be eligible for Medicaid or children’s health insurance program.

No Need to File for Deferred Action in Haste

The USCIS began accepting applications for deferred action on August 15 after making the forms available on its website the day before. Meanwhile, DREAMers are turning out in large numbers, participating in community workshops and seeking legal assistance, in anticipation of submitting their requests for consideration of deferred action.

Since the USCIS is expected to be deluged with these requests in the coming weeks and months, some individuals may think that it is better to get ahead of the pack by filing their applications early.

But perhaps it is more important to get one’s application right than to just simply get it filed. Making sure that an application is complete will help prevent unnecessary delays. A carefully prepared application will also prevent denials in cases that would otherwise merit a grant of deferred action.

Another reason why an applicant should not hastily submit a request is the fact that the new process would not allow him to appeal a denial or to file a motion to reopen or reconsider the denial.

The deferred action applicant must make sure to submit evidence that he meets the key guidelines under the new process. Examples of documents to demonstrate eligibility were provided in the guidelines issued by the DHS a few weeks ago.

To prove identity, the applicant may submit a passport, birth certificate with photo identification, a school ID with photo, or a U.S. government immigration or other document with the applicant’s name and photo. To show that he came to the U.S. before age 16, the applicant can submit a passport with an admission stamp, Form I-94, an INS or DHS document stating the date of entry, U.S. school records, travel records and hospital records.

To prove physical presence as of June 15, 2012 and continuous residence since June 15, 2007, applicants may submit rent receipts, utility bills, pay stubs, school records, religious records, money order receipts, passport entries, birth certificate for children born in the U.S., dated bank transactions, Social Security cards, car license receipts or registration, rental agreement contracts, tax receipts and insurance policies.

A final order of exclusion, deportation or removal and an I-94 with an expired date of authorized stay may be used to demonstrate that the applicant lacked lawful status as of June 15, 2012. School transcripts, report cards, high school diploma or GED certificate will prove the applicant’s student status as of the time of the request.

It is still unknown how long USCIS will take to process each application. If an applicant’s submitted documentation is insufficient, the USCIS may send him a request for evidence or ask him to appear at a USCIS office. The adjudication process also involves biographic and biometric background checks as well as supervisory review.

After deferred action is granted, the applicant may apply for advance parole if he wants to travel outside the U. S. He must file Form I-131 Application for Travel Document and pay the $360 filing fee. Generally, advance parole will be granted if the travel is for humanitarian, educational or employment purposes. Form I-131 cannot be filed concurrently with the deferred action request.

Those whose cases have been deferred under this process but already have a final order of removal may also request advance parole. However, if advance parole is granted the applicant must first reopen the case and obtain an administrative closure or termination before traveling outside the U.S.

The guidelines provide that it will be possible to apply for the extension of the period of deferred action. The applicant would also have to request an extension of his employment authorization. Even individuals who have turned 31 years old can request an extension as long as they were not above age 30 on June 15, 2012.

Guidelines for Requesting Deferred Action

Details of the process for requesting consideration of deferred action were finally released by the Department of Homeland Security (DHS) on August 3, 2012. The guidelines, published in a question and answer format, answers many questions regarding the process announced by President Obama less than eight weeks ago.

In order to clarify certain issues that the public may have regarding this process, some of the important items in the guidelines are repeated or summarized below.

Q: How does an individual who came to the United States as a child request consideration of deferred action?
A: The request will be made on a form that will be on the USCIS website on August 15, along with a form requesting employment authorization. The total filing fee is $465. Requests may be filed with the USCIS no earlier than August 15, 2012.

Q: Will information given in the request for consideration of deferred action be confidential?
A: Yes. The guidance clarifies that information given in the request is protected from disclosure to the enforcement arms of the DHS, including the U.S. Immigration and Customs Enforcement (ICE). Individuals whose cases have been deferred under this process will not be referred to ICE.

However, this protection does not apply if the requestor commits fraud or has a certain type of criminal history. USCIS guidance requires the issuance of a notice to appear or referral to ICE in certain circumstances, such as when there is a statement of findings substantiating the fraud, or when an alien is an egregious public safety case.

The guidance itself states that if the alien knowingly makes a misrepresentation or fails to disclose facts in order to obtain deferred action or work authorization, he would be treated as an immigration enforcement priority and subjected to criminal prosecution and/or removal.

Q: If the request is denied, will the alien be placed in removal proceedings?
A: If the case does not involve a criminal offense, fraud or threat to national security or public safety, it will not be referred to ICE for removal proceedings, except if the DHS finds that there are exceptional circumstances.

Q: Will dependents and relatives of the requestor benefit from this process?
A: No. Immediate relatives or dependents of childhood arrivals may not be considered for deferred action under this process unless they independently satisfy the guidelines.

Q: What are the key guidelines that must be met to be considered for deferred action?
A: To be able to request consideration of deferred action, the requestor must meet the following: be under the age of 31 as of June 15, 2012; came to the U.S. before his 16th birthday; continuously resided in the U.S. since June 15, 2007 up to the present; physically present in the U.S. on June 15, 2012 and at the time of making the request; entered without inspection before June 15, 2012 or lawful immigration status expired as of June 15, 2012; currently in school or has graduated or obtained a certificate of completion from high school, or obtained a GED certificate, or was honorably discharged from the U.S. Coast Guard or Armed Forces; and has not been convicted of a felony, significant misdemeanor, or three or more misdemeanors, and does not otherwise pose a threat to national security or public safety.

Q: How old must the requestor be in order to be considered for deferred action?
A: The alien must be at least 15 years old at the time of filing, unless he is in removal proceedings or has a final removal order or voluntary departure order, in which case the request may be filed even if he is under the age of 15.

Q: If an individual is currently in a nonimmigrant status (e.g., F-1 or H-4), can he request consideration?
A: No. Only those who currently have no immigration status and were not in any lawful status on June 15, 2012 are eligible to request consideration.

Q: Is expedited processing available?
A: No. There is no expedited processing for deferred action, so promises by unscrupulous practitioners or consultants for faster service upon payment of a fee may be fraudulent.

Q: If a case is deferred, does the individual obtain lawful status?
A: No. The guidelines reiterate the grant of deferred action will not confer any lawful status or provide a path to permanent residence or citizenship.

Q: Does the individual incur unlawful presence during the period of deferral?
A: No. If one’s case is deferred, the requestor will not accrue unlawful presence during the period of deferred action. However, it will not excuse previously accrued unlawful presence and, unless the requestor is under 18 years of age at the time of the request, unlawful presence will continue to accrue while the request is pending.

Q: If the request is denied, can the decision be appealed?
A: No. A motion to reopen or reconsider or an appeal is not available if the USCIS denies the request. USCIS will not review its determination except in two circumstances: if the denial was due to abandonment but the requestor responded timely to a request for evidence, or if the USCIS has a record of the requestor’s new address but it sent the RFE to the wrong address.

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