Answer: It is not exactly legal status. However, it is a manner in which they will not be deported and will be permitted to legally stay here, go to school and work. Over the past three years, this Administration has undertaken an unprecedented effort to transform the immigration enforcement system into one that focuses on public safety, border security and the integrity of the immigration system.
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As DHS continues to focus its limited enforcement resources on the removal of individuals who pose a danger to national security or a risk to public safety, including aliens convicted of crimes, with particular emphasis on violent criminals, felons, and repeat offenders, DHS will move to exercise prosecutorial discretion to ensure that enforcement resources are not expended on low priority cases, such as individuals who were brought to this country through no fault of their own as children, have not been convicted of a felony offense, a significant misdemeanor offense, or multiple misdemeanor offenses,.
In essence, ICE will focus its efforts on deporting those who pose a security risk.
Question: When will this go into effect?
Answer: Effective immediately, certain young people who were brought to the United States through no fault of their own as young children and meet several key criteria will no longer be removed from the country or entered into removal proceedings. Those who demonstrate that they meet the criteria will be eligible to receive deferred action for a period of two years, subject to renewal.
Only those individuals who can prove through verifiable documentation that they meet these criteria will be eligible for deferred action. Individuals will not be eligible if they are not currently in the United States and cannot prove that they have been physically present in the United States for a continuous period of not less than 5 years immediately preceding today's date. The use of prosecutorial discretion confers no substantive right or pathway to citizenship.
Question: Was this passed by Congress?
Answer: No. In fact, it has been at Congress for over 10 years and last year the Republican's would not let the bill go through. Thus, President Obama has helped you and thousands of other kids by using this particular manner. Only the Congress, acting through its legislative authority, can confer these rights as to a path to residency and citizenship. However, until they act, this particular manner is the best alternative.
While this guidance takes effect immediately, USCIS and ICE expect to begin implementation of the application processes within sixty days.
Question: Should I try to prepare the petition now even though it cannot be filed for a few weeks.
Answer: Absolutely. There will be a rush to get these out. Also, it will take time to prepare a good DREAM Petition. Otherwise, it will just be denied.
Question: Who is eligible to receive deferred action under the Department's new directive?
Answer: Pursuant to the Secretary's June 15, 2012 memorandum, in order to be eligible for deferred action, individuals must:
1.) Have come to the United States under the age of sixteen;
2.) Have continuously resided in the United States for at least five years preceding the date of this memorandum and are present in the United States on the date of this memorandum;
3.) Currently be in school, have graduated from high school, have obtained a general education development certificate, or are honorably discharged veterans of the Coast Guard or Armed Forces of the United States;
4.) Have not been convicted of a felony offense, a significant misdemeanor offense, multiple misdemeanor offenses, or otherwise pose a threat to national security or public safety;
5.) Not be above the age of thirty.
Individuals must also complete a background check and, for those individuals who make a request to USCIS and are not subject to a final order of removal, must be 15 years old or older.
Question: If I am about to be 30 years old, but over 30 when it is ruled upon, will that be ok?
Answer: That is unclear at this point. However, it would be in your benefit to immediately file while you are under 30 years old.
Question: If I have a crime that makes me ineligible, is there a solution?
Answer: Yes, you should get it vacated or reduced so that you become eligible to file.
Question: What is deferred action?
Answer: Deferred action is a discretionary determination to defer removal action of an individual as an act of prosecutorial discretion. Deferred action does not confer lawful status upon an individual. In addition, although an alien granted deferred action will not be considered to be accruing unlawful presence in the United States during the period deferred action is in effect, deferred action does not absolve individuals of any previous or subsequent periods of unlawful presence.
Question: Can someone on deferred action get work authorizaion?
Answer: Under existing regulations, an individual who has been granted deferred action is eligible to receive employment authorization for the period of deferred action, provided he or she can demonstrate an economic necessity for employment.' Deferred action can be terminated at any time at the agency's discretion or renewed by the agency.
Question: How will the new directive be implemented?
Answer: Individuals who are not in removal proceedings or who are subject to a final order of removal will need to submit a request for a review of their case and supporting evidence to U.S. Citizenship and Immigration Services (USCIS). Individuals may request deferred action if they meet the eligibility criteria. In the coming weeks, USCIS will outline and announce the procedures by which individuals can engage in this process.
Question: What about people in removal/deportation proceedings at this time?
Answer: For individuals who are in removal proceedings before the Executive Office for Immigration Review, ICE will, in the coming weeks, announce the process by which qualified individuals may request a review of their case. For individuals who are in removal proceedings and have already been identified as meeting the eligibility criteria as part of ICE's case-by-case review, ICE will immediately begin to offer deferred action for a period of two years, subject to renewal.
Question: Does the process result in permanent lawful status for beneficiaries?
Answer: No. The grant of deferred action under this new directive does not provide an individual with permanent lawful status or a pathway to obtaining permanent lawful status. Only the Congress, acting through its legislative authority, can confer the right to permanent lawful status.
Question: Why will deferred actions only be granted for two years?
Answer: Grants of deferred action will be issued in increments of two years. At the expiration of the two year period, the grant of deferred action can be renewed, pending a review of the individual case.
Question: If an individual's period of deferred action is extended, will individuals need to re-apply for an extension of their employment authorization?
Answer: Yes. If an individual applies for and receives an extension of the period for which he or she was granted deferred action, he or she must also request an extension of his or her employment authorization.
More on the DREAM ACT Memo
More information from Los Angeles Immigration Attorney Brian D. Lerner
Basics on the DREAM ACT Memo
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