Secretary Napolitano Announces Deferred Action Process for Immigrants

President Obama’s immigration policy is now moving into action. The President announced last Friday that, by executive order, the United States will be giving thousands of illegal immigrants work permits rather than deporting them through what is known as the Deferred Action Process. An executive order is a direct order issued by the executive branch, the President, without having to be voted upon by U.S. Congress. This new immigration policy will not affect all illegal immigrants, but only those who meet certain criteria.

Who is eligible?

Secretary of Homeland Security, Janet Napolitano, announced last Friday that while immigration laws must be enforced, there must be room for understanding when it comes to individual and special cases. An estimated 800,000 illegal immigrants are expected to be affected. Under this new directive, there are five criteria that must be met in order to qualify. These criteria must be proven through verifiable documentation.

  1. Must have come to the United States before the age of 16 years;
  2. Must have resided in the U.S. for at least five years preceding this announcement;
  3. Must be currently in school, have graduated from high school or obtained a general education development certificate or be an honorably discharged veteran of the Coast Guard or Armed Forces;
  4. Must not have been previously convicted of a serious crime; felony or misdemeanor. Those who pose a threat to national security or public safety will not qualify;
  5. Cannot be above the age of thirty on June 15, 2012.


President Obama announced his executive order for Deferred Action as a reaction to the DREAM Act being blocked by Congress. The DREAM Act, while also something that the President is trying to get Congress to pass, is not the same as this Deferred Action Process. The DREAM Act (an acronym for the Development, Relief, and Education for Alien Minors) was originally introduced in August 2001 and would provide certain illegal aliens with permanent U.S. residency. The criteria for this act are: good moral character, graduates of U.S. high schools, came to the states as minors and lived in the country for at least five years prior to the date the bill would be enacted.

These individuals are often referred to as “dreamers,” in relation to the term coined for the act. President Obama is still urging Congress to pass the act, even in light of his recent executive order. Those who would like more information about the Deferred Action Process are encouraged to read theDepartment of Homeland Security press release directly. You can also view a videofrom the White House of President Obama’s speech on this recent change in U.S. immigration policy.

Deferred Action (DA) for Early Childhood Arrivals

Beginning on August 15th, 2012, the United States Citizenship and Immigration Services (USCIS) will accept applications for early childhood arrivals. In short, the USCIS is offering individuals who came the United States as young children to opportunity to postpone any legal action taken against them for being in the country. Although the USICS has not made a form available yet, the government website should have an application form available by August 15th. This packet will also include a form to request DA and EAD. There is a $465.00 fee attached to the form.

All applications for deferred action will be submitted to the USCIS lockbox and reviewed at one of the four service centers – all requests will be handled by the USCIS. If you are currently detained, submit your form to United States Immigration and Customs Enforcement (ICE), instead. If your application is accepted, legal action against you will be deferred for two years; if you decide to re-apply, you must pay a renewal fee. If you are less than 18 years old, the USCIS may not charge you a fee to apply for DA – especially if you are homeless in the foster care system, have to income, have to parental support or cannot care for yourself because of a disability.

If your application is denied, your case will not be given to IC unless your presence in the United States is considered an issue of national security. Generally speaking, you must be at least 15 years old to apply; unless you have a removal order filed against you already. If you were 16 years old or older when you enter the U.S., your application will not be considered for approval. Any “brief and causal” absences form the U.S. will not interfere with the legality of your physical presence in American – but only if you traveled before June 15th, 2012. If your application is accepted, you may apply for permission to travel abroad by filing form I-131 Advance Parole Request. If you or your family has a pending, immigration or visa related application with USCIS, you are still allowed to petition for DA.

If you have been convicted of significant criminal activity, (more than three misdemeanors) your application will be automatically rejected. If you have been convicted of one significant misdemeanor, you will not qualify for DA. Additionally, insignificant traffic violations are considered misdemeanors. For the purpose of application, the phrase “in school” applies only if you are enrolled in school at the time your DA request is made. Generally speaking, a felony is any crime punishable by one year (or more) in prison. Felonies may be federal, state or local offenses. A significant misdemeanor is any offense punishable by 5 or more days of incarceration and may include sexual abuse, burglary, drug trafficking, driving under the influence or domestic violence.

When you apply, you must present documents that show that you entered the U .S. when you were less than 16 years old and that you have resided in the U.S. for at least five years prior to June 15th, 2012. You may use military, school or employment documents to demonstrate this. Additionally, you must have been physically present in the United States on June 15th, 2012 or else your application will not be considered for approval. Once you have applied and been accepted, you will be able to track the status of your DA online. If your application is denied, you may not appeal the decision of the USCIS. However, you may file a motion for the USCIS to reconsider your application or re-open your case.