Deferred Action

On June 15, 2012, the Obama Administration announced that it would offer many DREAM Act-eligible youths protection from deportation. These youths, whether or not they are currently in deportation proceedings, are able to apply for “deferred action,” which will temporarily shield them from deportation and enable to live and work legally in the US.

The following information is based on releases from the Department of Homeland Security since June 15, 2012, the date this policy was announced. The agencies involved in this policy change are the U.S. Department of Homeland Security, U.S. Immigration and Customs Enforcement, U.S. Citizenship and Immigration Services, and the U.S. Customs and Border Protection. This information is accurate to the best
of our knowledge and may change as DHS releases more information on the process for applying for Prosecutorial Discretion. Please make sure to remain up-to-date on the details of this policy, as new information may be released day-by-day.

If you are undocumented and meet the following criteria:

  • You were less than 16 years old when you came to the U.S.
  • You have been in the U.S. for 5 consecutive years prior to June 15, 2012
  • You were present in the U.S. on June 15, 2012
  • You are currently at least 15 years old AND under 31 years old
  • You have not been convicted of a felony, a major misdemeanor, or more than two minor misdemeanors
  • You are currently in high school, or have graduated high school, completed or are completing the GED, or are an honorably discharged veteran of the Coast Guard or U.S. Army

Do you meet the criteria to receive deferred action?
As long as you meet these criteria, you can apply, regardless of whether you are in removal proceedings, or whether you have a final order of removal.

How to prove these criteria:
(Note: the burden of proof lies on you. You will not be given the benefit of the doubt):

  • A document that you obtained in the U.S. that is dated when you were under 16 years old. These include school transcripts/records, medical records such as a physical, financial records, employment records, military records, etc. (Note: any form of false information, including a
    false/fake Social Security Number may disqualify you from Prosecutorial Discretion. DO NOT RISK IT. ONLY SEND TRUTHFUL INFORMATION).
  • You will need at least one document/record proving your presence in the U.S. for every year since 2007 to build a solid case. Example: if you were a freshman in high school in 2008, then your entire high school transcript proves your presence in the U.S. for 2008, 2009 and 2010, and
    2011 -- you will just need one more document proving your presence in the U.S. in 2007 before June 15.
  • Two documents roughly before and roughly after June 15th, 2012 would be enough. They will likely not make this requirement super strict, but make sure to have at least one document dated roughly around June 15th, 2012. Example: a high school or college transcript for the 2011-12 school year would suffice.
  • Birth certificate, valid passport, or any other valid document/record stating your date of birth.
  • DHS will run background checks on applicants. We do not have enough information at the moment. You may be asked to submit criminal/civil records, and details on how to obtain these would be released.

How to apply?
Individuals requesting deferred action must file three forms with USCIS:

  • I-821D, Consideration of Deferred Action for Childhood Arrivals;
  • I-765, Application for Employment Authorization;
  • I-765, Worksheet.

All forms and instructions can be obtained for free from USCIS's website.

What is the cost of the application?
The application costs $465 and that covers the cost of the DA application, the work permit application, and the biometrics.

What happens after you apply?
You will have to wait until you are notified from USCIS if you are granted Deferred Action. The process could take 3 months to 1 year. More information will be published
later. You will also be able to follow the progress of your application on the USCIS website.

If you are granted prosecutorial discretion, then:

  • You will be safe from the threat of deportation for a two-year period if you do not attain a criminal record. Right before the end of this two-year period, you may apply for deferred action again through the same process. If you are convicted of a crime during this two-year period, your deferred action will be put at risk and you may face deportation. Seek advice from a lawyer
    immediately.
  • For those living in Massachusetts, you will be able to obtain a drivers license once you receive your work permit. You will need to prove your face, your age, and your signature. This can be done through your passport, among a few documents. Policies of obtaining a drivers license in other states vary. If you are not a MA resident, check your state’s individual policy.
  • You will be able to pay In-State Tuition rates at public schools of higher
    education once you receive your work permit, assuming you meet all other requirements. Policies of obtaining In-State tuition rates in other states vary. If you are not a MA resident, check your state’s individual policy.

If you are denied prosecutorial discretion:
You will not be able to appeal the decision.

  • If you have a criminal record, you may or may not be recommended to ICE, and may or may not be placed in deportation proceedings. It is VERY IMPORTANT that you speak with a lawyer NOW, before applying, in order to receive legal advice on whether you should apply at all.
  • If you do not have a criminal record, then you will not be referred to ICE.

Travel permission:
If you are granted Deferred Action, you will be allowed to request a travel permit (Advance Parole) for humanitarian, employment, or educational reasons. You cannot request Advance Parole while your DA application is pending. The form for Advance Parole is I-131 and the cost is 360$. Please consult a lawyer directly or through a trusted community organization before applying for Advance Parole.

Note:

  • Prosecutorial Discretion IS NOT a change in your immigration status. You will still be undocumented, however, with Prosecutorial Discretion you will be lawfully present in the U.S. and eligible to work.
  • Prosecutorial Discretion will be granted by discretion! This means that just because you fulfill all the requirements, it DOES NOT mean you are guaranteed Deferred Action! Applications for Prosecutorial Discretion will be granted or denied on a case-by-case basis!
  • The decision that you will receive from USCIS is final. There is no appeal process. Prosecutorial discretion is temporary, and can be taken away from you at any time, at the discretion of the agency. It can also be renewed with no limits. You will simply need to apply again in the same manner before the end of your initial two years.
  • You should NOT turn yourself into immigration authorities to request DA or you will put yourself in risk of deportation. Do not share any information with ICE that you do not wish the government to know.

This guide does not substitute a legal consult. Each case is different. Contact ONLY a qualifying immigration lawyer or an accredited representative for legal advice on your case.

Filing Tips:
Filing tips for Deferred Action for Childhood Arrivals can be found on the USCIS website.

Need Help?
The Brazilian Women's Group can help. If you need assistance filling out your applications or if you have any questions, email us at daca@verdeamarelo.org.

Sources:
- Student Immigrant Movement

THIS GUIDE IS NOT INTENDED OR OFFERED AS LEGAL ADVICE. These materials have been prepared for educational and informative purposes only. They are not legal advice or legal opinions on any specific matters.