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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.

Single Card for Employment and Travel of Adjustment Applicants

The USCIS announced recently that it will issue employment and travel authorization to adjustment of status applicants on a single card. Previously, only the employment authorization document (EAD) was issued in the form of a plastic card and the advance parole document was an actual paper document. A single EAD card with advance parole endorsement is more durable, secure and convenient.

According to a Policy Memorandum dated December 21, 2010, the USCIS found that it is cost-effective to adjudicate Forms I-765 and I-131 simultaneously and issue a single document if both benefits are granted. The USCIS makes separate adjudications of applications for these ancillary benefits, although the information required from the applicant and the processes followed by the adjudicator are similar.

Approximately 15% of EAD applicants with pending adjustment applications file a Form 131 concurrently with or shortly after filing the I-485, and approximately 93% of those applications are approved.

Also referred to as Form I-766, this new dual-purpose card is available to eligible individuals with pending family- or employment-based I-485 applications who have concurrently filed an application for employment authorization (I-765) and an application for travel document (I-131). Separate EAD and advance parole documents will continue to be issued if only one ancillary benefit is requested, or if they were concurrently filed but the I-131 is denied.

For adjustment applications filed under the new fee structure (on or after July 30, 2007 for family-based cases, and on or after August 18, 2007 for employment-based cases) there are no separate fees for Form I-765 and I-131,and the applicant need only pay the I-485 fee of $1,070 fee, inclusive of the biometrics fee.

On the other hand, if the adjustment application was filed under the old fee structure, the card will cost $740 which is equal to the combined costs for Forms I-131 and I-765.

An advance parole document enables an adjustment of status applicant to travel abroad and re-enter the United States. Without advance parole, an alien who leaves the U.S. is considered to have abandoned his/her adjustment application. The alien will not be permitted to re-enter the U.S. without first obtaining some kind of visa, but in such a case the adjustment application will be considered abandoned except in the case of holders of certain types of visas, such as H and L visas.

The alien must request parole at the port of entry by presenting the advance parole document. The determination to grant parole is also made at the port of entry. Once in, the alien is considered a parolee and not someone who has been “admitted” for immigration purposes.

Advance parole does not cure inadmissibility due to unlawful presence accrued prior to the filing of the adjustment application. Therefore, individuals who are subject to the 3 or 10-year bar should carefully consider whether they need to file Form I-131.

The new dual purpose card looks similar to the current EAD but has the endorsement “Serves as I-512 Advance Parole”. The USCIS may issue a card validity of one or two years depending on the availability of immigrant visas, but it may in its discretion issue the card for a longer or shorter period. The new card may be used for employment eligibility verification (I-9) by employers as a List A document.

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