Deferred Action for Childhood Arrivals Presents Opportunity and Risk

On June 15, 2012, the Obama Administration announced that it would implement a new program to grant deferred action to undocumented aliens who were brought to the United States at a young age. This action came about one year after U.S. Immigration and Customs Enforcement (ICE) announced that it would concentrate its enforcement resources mostly on cases involving criminal issues. ICE published criteria that the agency would use to determine whether to exercise prosecutorial discretion to close cases already pending in immigration court. Together, these actions signaled a greater tolerance for aliens who were present in the United States in violation of immigration law, but who did not pose a danger to the public or to national security.

Two months after the Administration announced its deferred action program, called Deferred Action for Childhood Arrivals or DACA, it promulgated guidelines on how an undocumented alien could apply for the benefit. U.S. Citizenship and Immigration Services (USCIS) also published the criteria that it would use in deciding whether to grant deferred action. Through the guidelines, USCIS provided detailed instructions on the documentation necessary to apply, and explained how it planned to use the information submitted.

Deferred Action

Deferred action is itself simply a promise by the U.S. Government that, although an alien is present in the United States illegally, it would not seek the removal or deportation of that alien. It is an exercise of executive discretion. That is, as the chief law enforcement officer, the President has the authority to decide which cases get brought to immigration court for removal, and which cases will not. It is much like the discretion a police officer has in deciding whether or not to arrest a person even when the officer has seen that person break the law.

Executive Discretion

Above all, it must be remembered that deferred action is based on an act of executive discretion. It is not based on law. That means that it is not a grant of legal immigration status. It is not a path to permanent residency or citizenship. Under the law, a person who has been granted deferred action can be granted the authority to work in the United States. But, it is not a permanent solution to the problem of illegal status.

Eligibility Criteria

To qualify for the DACA program, an undocumented alien must meet certain criteria. They are: (1) the alien must be under the age of 31 as of June 15, 2012; (2) the alien must have been brought to the United States before his or her 16th birthday; (3) the alien must have continuously resided in the United States since June 15, 2007 up to the present; (4) the alien must have been physically present in the United States on June 15, 2012; (5) the alien must have entered without inspection before June 15, 2012, or had his or her lawful immigration status expired as of June 15, 2012; (6) the alien must currently be in school, have graduated or obtained a certificate of completion from high school, have obtained a general education development (GED) certificate, or be an honorably discharged veteran of the Coast Guard or Armed Forces of the United States; and (7) the alien must not have been convicted of a felony, significant misdemeanor, three or more other misdemeanors, and not otherwise pose a threat to national security or public safety.

Application Process

To apply, the alien must submit an application on form I-821D, an application for work authorization on form I-765, a worksheet disclosing income and expenses to determine if work authorization is necessary on form I-765WS, and a filing fee of $465. As part of the process, the Government will take fingerprints and perform a background check.

Through its Frequently Asked Questions, USCIS promises that it will not turn over the information gathered through the application to ICE to begin removal proceedings, unless the application shows serious criminal activity, fraud or that the applicant poses a threat to national security.

Some Are Reluctant to Apply

Although the program promises significant benefits to those who qualify (a promise not to be deported, and possible work authorization), early reports have been that many aliens who meet the criteria are reluctant to apply. Many recognize that this is not a permanent solution to their situation, and are distrustful of the Administration's promises not to use the information for deportation.

Uncertain Future

Such concerns are indeed well-founded. As mentioned, deferred action is a grant of executive discretion. It is not law. Therefore, it creates no rights or privileges. Indeed, USCIS itself, on its Frequently Asked Questions page, states that it could change its promise not to use the information submitted for enforcement purposes at any time, and without prior warning.

Consideration must also be given to the fact that this is a presidential election year. Even if the Obama Administration is committed to the program, the race appears close. This could mean that the country will have a new president in January. The new president would not be bound to follow the policy choices of the Obama Administration with respect to the DACA program.

To that end, Republican presidential candidate Mitt Romney has announced that he would not seek the deportation of undocumented aliens who have been granted deferred action under the DACA program. On the other hand, he would not continue with the DACA program in his administration.

This announcement creates somewhat of an incentive for undocumented aliens to apply for deferred action now. If the benefit is granted before President Obama leaves office, then they can hold Romney to his promise. But, if an undocumented alien waits, and Romney does become president, then that alien could lose this opportunity to obtain the promise of not being removed along with work authorization. Indeed, it has been reported that Romney's position on immigration issues has already prompted some undocumented aliens to apply for deferred action now.

This leaves many undocumented aliens with the decision of whether to apply for deferred action, or wait for some more permanent form of immigration reform. Whether to apply is a decision that should be made only after considering the risks and weighing the potential benefits.

Criminal Records Must be Given Careful Consideration

For example, those with criminal records should give very careful consideration before applying. USCIS has stated that those with a felony conviction, a conviction for a significant misdemeanor, or three convictions for any other misdemeanors will not qualify. The Frequently Asked Questions gives detailed guidance on what exactly constitutes a significant misdemeanor. If an alien applies, and has not given full consideration to his or her criminal record, then USCIS may very well refer that alien to ICE for removal proceedings.

Risks and Potential Benefits Should be Weighed Before Applying

In the end, the question will be whether the promise of the legal ability to accept employment in the United States outweighs the risks posed by calling attention to one's self and one's illegal immigration status. Such a determination is personal in nature, and ought to be made after seeking competent legal advice.

What to Do and What Not to Do When Filing for Deferred Action

The administration has implemented the deferred action process that will temporarily postpone the deportation of certain eligible undocumented immigrants from the United States and the USCIS is accepting requests from such eligible individuals. But the application filing process is not simple as it involves various steps.

Three different USCIS forms must be completed and sent along with the supporting documentation and fees, to a USCIS lockbox. As you cannot appeal, if the USCIS denies your request, it is wise to avoid mistakes while filling the forms. Incomplete forms and forms with mistakes will not be accepted, hence you may read the instructions before filling up the forms.

The three forms that must be filed are, Form I-821D, Consideration of Deferred Action for Childhood Arrivals, Form I-765, Application for Employment Authorization, Form I-765WS, Worksheet. According to the form instructions, the three Forms I-821D, I-765 and I-765WS must be mailed together, to a USCIS lockbox.

An application requesting deferred action must be sent along with an application for employment authorization. USCIS will not accept forms that are unsigned. So, make sure that you fill in all the required fields and sign Form I-821D and Form I-765, before mailing the forms. Remember to sign the forms, even if someone else fills the forms for you.

You need not pay for blank USCIS forms and you may download the forms from the USCIS website and remember to download the current version of the forms. Form I-821D and Form I-821 are both different and use Form I-821D, to request deferred action. Do not use Form I-821, as it must be filed to request Temporary Protected Status.

You may not e-file a request for deferred action and the completed forms must be mailed to a USCIS lockbox. Applications without the required fee will not be accepted and submit a check of $465 along with the application package. You may also choose submit separate checks of $380 and $85.

You must fill in your name, date of birth and address in the same format on Form I-821D and Form I-765 and do not leave any column blank. Supporting documentation that you mail along with your application play an important part, because the USCIS will decide whether or not to grant you deferred action only after reviewing the documents that you submit.

You can also label the documents according to the USCIS guidelines, as it will be easier for the USCIS to verify your documents. Fill the form using black ink, if you are completing it by hand or type your answers and then print your form. It is recommended to start over again with a new form if you make a mistake. Incorrect and illegible answers will lead to the denial of your request.

It is mandatory to understand the eligibility requirements for deferred action before filing an application. Your request may not be accepted if you do not satisfy the eligibility requirements. Requests from undocumented immigrants above age 31, will not be accepted by the USCIS. After you fill the forms, check your application package, before you mail it to a USCIS lockbox.

Underwhelming Reaction to Obama's Deferred Action Plan in Florida

The Obama administration created the Deferred Action Plan for immigrants who arrived in the U.S. before the age of 16 and are currently enrolled in high school, graduated from high school, or have served in the military. If immigrants meet these qualifications and do not have an extensive military record, they can stay in the United States for two years without the fear of deportation.

This program has received a tepid response from the immigrants who are expected to benefit from the plan. Statistics show that less than 15 percent of young immigrants who are eligible for President Obama's deferred action plan have actually applied. The top five states with the largest numbers of potentially eligible immigrants include California, Texas, Florida, New York and Illinois. Approximately 100,000 young immigrants stand to benefit from the Deferred Action Plan in Florida alone, and Florida law also permits immigrants with work permits to obtain driver's licenses as well.

The two main reasons why undocumented immigrants are hesitant to apply for this program are fear and politics. In order to apply, immigrants must fill out a six-page form that includes an address and multiple documents that prove that they have actually lived in the country. They must also include documents that prove that they are under the age of 31 and must have come to the United States before they turned 16.

The most stressful part of applying is that there is no chance to appeal applications that are denied. The steps involved with filling out these applications are not only time-consuming, but legally complex as well. If the application is incomplete or incorrectly filled out, it will be sent back to the applicant to resolve the problems. Once the application is accepted, it will be reviewed by the U.S. Citizenship and Immigration Services and a final decision will be made. Applicants must also pass a background check, and the total fee of applying for the program is $465.

The second thing that is hindering undocumented immigrants from applying for this program is politics. With the recent announcement by Mitt Romney that he would shut down deferred action if he was elected president and replace it with "permanent reform of our broken immigration system", many young immigrants have decided to wait on applying for the program. For some immigrants who are desperate to avoid deportation, it is better to apply and take their chances. Others are choosing to wait and see who is elected. For more information on the Deferred Action Plan and how it affects you, contact a Tampa immigration lawyer at Maney & Gordon, P.A. today.