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Pointers for DREAMers as they Get Ready for Deferred Action

As the Department of Homeland Security is set begin implementation of the deferred action application process, undocumented individuals who came to the U.S. at a young age, commonly referred to as the DREAMers, should complete collecting documents to support their application. At the same time, however, they must be wary of immigration scams.

These DREAMers must document their history in the United States – their date of entry, physical presence, continuous residence, and educational history – in order to present as complete and strong a case as possible. Financial records, medical records, school records, employment records and military records may be used to prove one or several criteria.

Documents that may be useful include immigration records, I-94 cards, driver’s licenses, birth certificates of the applicant and any children born to him/her in the United States, marriage certificates, utility bills, tax returns, lease agreements and rent receipts, dated photographs, bank statements, cancelled checks, diplomas and transcripts.

Individuals who have a criminal history might be found ineligible and be subjected to deportation proceedings so if an applicant has a criminal conviction, he/she should obtain a certificate of disposition from the court and seek legal advice before applying for deferred action.

Prospective applicants should watch out for notarios and unscrupulous consultants who promise that they can already start the application upon payment of a fee. Until the details of the application process are made public, a request for payment of application or filing fees may be fraudulent. The new policy is not an amnesty and promises of a green card or path to U.S. citizenship are false.

Only qualified lawyers can give legal advice and not notarios or notary publics, so make sure that your lawyer is a member of the state bar association before using his/her services.

In the days leading up to the announcement of the application procedure, more and more stories of immigration fraud become exposed. For example, there have been reports that a scam artist had been calling immigrants and identifying himself as a USCIS officer. He/she would ask for certain data such as the I-94 number and the “A” number and, supposedly in order to rectify a discrepancy with their records, ask for money to be wired via Western Union.

To avoid being the victim of immigration fraud, everyone must be alert and proactive.
Many references are available online to help prevent immigration fraud, such as the U.S. Federal Trade Commission (FTC) which has a dedicated site at www.ftc.gov/immigration, and the American Immigration Lawyers Association-sponsored website www.stopnotariofraud.org. Those who believe that they were the victim of immigration fraud must report it to the FTC.

The new policy announced by President Obama last June is expected to spare some 800,000 individuals from deportation. Under the June 15, 2012 Memorandum, certain immigrants will be eligible for administrative relief in the form of deferred action for two years, subject to renewal, and eligibility for employment authorization.

Deferred action refers to the discretionary determination to defer removal action against an individual as an act of prosecutorial discretion. It does not grant legal immigration status. The memorandum stated that the federal government would create a process for the application in sixty days.

To be eligible for deferred action, the following criteria must be met: (1) applicant came to the United States under the age of 16; (2) continuous residence in the U.S. for at least 5 years prior to June 15, 2012; (3) currently in school, graduated from high school or obtained general education development(GED) certificate, or honorably discharged from the Armed Forces; (4) not convicted of a felony offense, significant misdemeanor offense, or multiple misdemeanor offenses, and not otherwise a threat to national security or public safety; and (5) age 30 or below.

Senators Urge Obama to Grant Relief to DREAM Act Students

Twenty-two U.S. Democratic senators recently wrote a letter to President Obama asking him to take executive action in light of the DREAM Act’s failure in the Senate four months ago.

The Senators, headed by Majority Leader Harry Reid of Nevada, urged the President to defer immigration enforcement proceedings for students who may benefit from the DREAM Act. Under the proposal, these students must meet requirements necessary to be eligible for cancellation of removal or a stay of removal under the DREAM Act.

The letter, dated April 13, 2011, reminded the President that he may exercise prosecutorial discretion in light of the government’s law enforcement priorities and limited resources. The Senators also noted that both the Bush and Obama administrations have granted deferred action to a number of students on a case-by-case basis.

In asking for deferred action for eligible students, the Senators called the President out on his position at his last State of the Union Address, where he asked Congress to “stop expelling talented, responsible people … who could be further enriching this nation”.

The senators said that they would also support other measures short of granting deferred action on all DREAM Act students, such as establishing a formal process for applying for deferred action, creating a reporting and tracking mechanism for DREAM Act cases, and granting deferred action as early as possible in each individual case.

It may be remembered that last year, the House of Representatives passed the DREAM Act (less commonly known as the Development, Relief, and Education for Alien Minors Act). It garnered the majority support of 55 votes at the Senate but was unsuccessful in overcoming a Republican filibuster.

Deferred action is a type of relief granted in the exercise of prosecutorial discretion not to pursue the removal or deportation of an alien for a specific period of time. It is a purely administrative act which may not be reviewed by courts.

While it does not confer immigration status, deferred action prevents the immigration authorities from seeking removal during the period of effectivity and makes the alien eligible for work authorization.

The USCIS grants deferred action on a case-by-case basis. Years ago, I was involved as an attorney in securing deferred departure status for hundreds of nurses – most of them from the Philippines – who were facing deportation for failing their licensure exams or changing employers without authorization. After several meetings with the INS Commissioner and other top INS officials, we obtained an agreement giving the nurses deferred departure status in 6-month increments up to a maximum of 3 years, and they were restored to lawful status after passing their licensure exams.

The USCIS has allowed deferred action for Haitian earthquake victims and foreign academic students impacted by Hurricane Katrina. It also grants deferred action in U visa cases which involve substantial physical or mental abuse.

It is estimated that 65,000 undocumented students finish high school each year. However, because they lack immigration status, many of these students are not able to attend college, and even when they do, they are unable to find work after graduation. The DREAM Act aims to address their plight by giving them a path to permanent resident status.

Passage of the DREAM Act by Congress is the humanitarian response to the hardship faced by these blameless immigrant students. Failing that and in the interim, deferred action by the Obama administration is a commendable alternative.

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