On Friday, June 15, 2012, President Obama delivered a speech in the Rose Garden outlining a plan to defer removal ("deportation") and grant temporary protected status for certain young immigrants who have been brought to the U.S.A. without any valid visas or lawful status, through no fault of their own, when they were minors, either by their parents or family members or the infamous "coyotes."
"They are Americans in their hearts, in their minds," He explained. However, he went on to emphasize that his executive order would not provide them with a path to citizenship nor is it an "amnesty."
There were definitely hints that the President was planning something when, on November 7, 2011, the Department of Homeland Security announced that they would follow a new policy of providing prosecutorial discretion i.e. to cease actively pursuing removal proceedings for certain young immigrants who met a number of criteria. I wrote about it in details in this blog last year.
In practice, I, along with many other immigration attorneys practicing before the Los Angeles Immigration Court, have experienced first hand this policy, which allowed many clients to have their removal proceedings terminated. Some were allowed to pursue adjustment of status ("Green Card") if they had a valid, approved petition filed by their family members and others were allowed to renew their work permit based on a pending application. In July 2012, the Los Angeles Immigration Court will be closed for an extended "holiday" which is really to allow the attorneys for Immigration and Customs Enforcement to review hundreds of alien files for prosecutorial discretion.
As it stands now, no one can apply yet under President Obama's Deferred Action. The USCIS has until August 15 to create a process to accept these appliations and has advised the public to just keep checking their website (www.uscis.gov) for further updates. It would be wise for immigration attorneys in private practice however in the meantime to also conduct a review of their client files and prepare all existing and potential clients to start gathering documentation that meets the criteria enunciated so far for Deferred Action. These can be found on the USCIS website as well. I will summarize them below:
1) The applicant must have come to the United states when he/she was UNDER the age of sixteen
This is a bit difficult to prove if there is no passport stamp, visa or any official documentation regarding the date of entry. However, secondary sources of evidence have been accepted customarily by the USCIS to demonstrate date of entry including sworn affidavits, airline tickets, bus tickets, or previous applications filed with the immigration authorities in which the date of entry of the applicant has been declared under oath.
2) The applicant must have continuously resided in the United States for at least 5 years preceding the President's June 15, 2012 executive order and has to be present in the United States on June 15, 2012.
The USCIS typically accepts school records, medical records, church records, employment records, sworn affidavits etc to establish continuous residence in the United States.
3) The applicant must be currently in school, have graduated from high school, have obtained GED, or be an honorably discharged veteran.
There were some discussions among immigration attorneys that the best advice to give for high school dropouts is to re-enroll or at least obtain your GED at this time. A wise piece of advice regardless of immigration status, no doubt.
4) The applicant must not be convicted of a felony offense, a significant misdemeanor offense, multiple misdemeanor offenses, or otherwise pose a threat to national security or public safety.
Of course, all applicants will be fingerprinted before getting any type of deferred action or other benefit, as is the custom with all immigration applications. A potential applicant could at this time go ahead and submit their fingerprints to FBi and the local law enforcement agency (in California, it would be by submitting a Livescan request at any of the many facilities designated by the California Attorney General) to obtain proof of a "clean" criminal record or at the very least check beforehand there are no errors or unfinished business so as to rectify said errors as soon as possible. There has been much discussion among immigration attorneys as to what would constitute "significant" misdemeanor or how many misdemeanor would qualify as "multiple" (more than 1? more than 2 ?) I am sure there will be more clarity once USCIIS publishes their regulations or on the other hand, this might become the type of issue that gets litigated on appeal to the AAO or BIA for a more detailed definition of what the words "significant" and "multiple" mean in this context.
5) The applicant must not be above the age of thirty.
The consensus among colleagues was that you would still be eligible as long as you applied before your 31st birthday. We have to wait for USCIS regulations on this matter also.
For now, USCIS has answered some FAQs on their website, including the fact that deferred action will be granted in increments of 2 years, to be renewed, and they may be granted employment authorization. Of course, this is assuming that whoever the next President of the United States is does not renege on this executive order.
