On June 15th, 2012, the Obama Administration published a memorandum that declared that the Department of Homeland Security (DHS) will cease the deportation of undocumented immigrant youth who meet certain conditions. By meeting these guidelines, those qualified will be eligible for deferred action for their illegal arrival into the United States as children and may also qualify for employment authorization. This deferral is good for a period of 2 years and is subject to renewal. Applicants may start on or after August 15, 2012. An applicant can meet the guidelines of the memorandum if he or she:
Establishing physical presence in the United States requires documentation. This can include school transcripts, children’s birth certificates or a certificate of marriage in the United States, medical records, tax records, utility bills and collection notices, credit card receipts, and even arrest records. Petitioners must be at least 15 years to apply for this deferral.
Deferred action, for the purposes of this memorandum, is determined by the USCIS and it defers any sort of removal action. Deferred action DOES NOT give individuals applying for it any sort of lawful status and does not excuse the individual for previous periods of unlawful presence. Deferred action is also NOT a path to getting permanent residence or citizenship.
Individuals who receive deferred action will not be able to gain from federal benefits, such as financial aid for college. Some states, such as Texas and California, may offer some financial help or special financial categorization for undocumented students attending institutions of higher learning.
Individuals who are currently detained by ICE or CBP are allowed to petition for deferred action if they meet the guidelines of the memorandum. The benefits of deferred action are not transferred to immediate relatives as it is a form of prosecutorial discretion and is granted on a case by case basis.
What is the Purpose of this Memorandum?
According to the Secretary of Homeland Security, Janet Napolitano, the June 15th Memorandum was put in place so that the law enforcement resources of the United States were not expended on low-priority cases, but instead focused on enforcement priorities such as international criminals. The Obama Administration concluded that, since individuals eligible for this policy change were brought to the United States were too young to have any intent to violate U.S. immigration law, they should not be set as targets for deportation since they are otherwise law-abiding individuals. These children, Secretary Napolitano notes, have only known the United States as home.
The temporary nature of this memorandum is arguably its most important aspect. Though it may lead to immigration reform in the future through legislative proposals such as the Development, Relief, and Education for Alien Minors (DREAM) Act, the memorandum can also be overturned by the next administration. The guidelines of the June 15th memorandum are very similar to the proposed DREAM Act, which, if passed, could be a path for undocumented youth to permanent residence and citizenship.
Confidentiality of Application
Information provided to the USCIS will not be disclosed to U.S. Immigration and Customs Enforcement (ICE) or U.S Customs and Border Protection (CBP). The only exceptions to this rule will be if the USCIS feels that an applicant is a threat to national security, committed fraud in his or her application, or has been convicted of criminal offenses. It is not the policy of the USCIS to refer cases to ICE or CBP when there is no fraud or criminal activity involved, even if your deferred action case is denied. Keep in mind that this policy may be changed at any time without notice and cannot be used to create a right or benefit.
What Benefits Can I Receive?
If you are approved for deferred action, you may also apply for employment authorization by filing Form I-765 after the approval of your deferred action case. If you receive an extension to your deferred action case, you must also submit an extension for your employment authorization if you wish to continue working in the United States.
If you wish to travel outside of the United States after your deferred action case is approved and you are travelling for employment, educational, or humanitarian reasons, you may do so after receiving advance parole, Form I-131. Advance parole requests are processed on a case-by case basis. For more information on advance parole, please click here.
Unfortunately, the USCIS’s decisions on deferred action may not be appealed, reopened, or reconsidered. They can, however, be reviewed if you believe your case was denied because of one of the following errors:
The application for deferred action, Form I-821D, can be found on the USCIS website and must also be accompanied by Form I-765 Application for Employment Authorization as well as the Form I-765WS Worksheet. The applications come with a $465 fee that includes biographic and biometric background checks.
(Updated 10/9/2012 by A.G.)
For more information about Asylum and Withholding of Removal, please click on one of the following topics: