Alan Lee, Attorney at Law - DREAMERS Obtain Three Good Breaks In U.S.C.I.S. Deferred Action For Childhood Arrivals Process

News Update - August 4, 2012

DREAMERS Obtain Three Good Breaks In U.S.C.I.S. Deferred Action For Childhood Arrivals Process

U.S.C.I.S. informed DREAMERS on August 3, 2012, that it would make the forms available to apply for deferred action for childhood arrivals on August 15, 2012, and would begin accepting applications immediately at a designated U.S.C.I.S. lockbox facility. The fee will be $465 with very few fee waivers, which will include the application, employment authorization request, and biometrics. Applicants can request consideration of deferred action if they:

Were under the age of 31 as of June 15, 2012;
Came to the United States before reaching their 16th birthday;
Have continuously resided in the United States since June 15, 2007, up to the present time;
Were physically present in the United States on June 15, 2012, and at the time of making their request for consideration of deferred action with USCIS;
Entered without inspection before June 15, 2012, or their lawful immigration status expired as of June 15, 2012;
Are currently in school, have graduated or obtained a certificate of completion from high school, have obtained a general education development (GED) certificate, or are an honorably discharged veteran of the Coast Guard or Armed Forces of the United States; and
Have not been convicted of a felony, significant misdemeanor, three or more other misdemeanors, and do not otherwise pose a threat to national security of public safety.

The Immigration Policy Center estimated that roughly 936,930 undocumented youth between the ages of 15 and 30 might immediately qualify for the new program. After lengthy discussions in Washington, it was determined that U.S.C.I.S. and not U.S.I.C.E. would be in charge of the program. DREAMERS were provided with three huge breaks with the U.S.C.I.S. announcement, "Consideration of deferred action for childhood arrivals process".

1. Out-of-school DREAMERS may be able to return to school to apply.

In the June 18, 2012, deferred action stakeholders meeting with U.S.C.I.S. Director Alejandro Mayorkas, U.S.I.C.E. Director John Morton, and Customs and Border Protection Acting Commissioner David Aguilar, DHS took the position that the 6th requirement had to be met on June 15, 2012. This author along with others believed that the lack of a specific date on this condition should be construed to mean that June 15, 2012, was not relevant to the fulfillment of the requirement; that many people had been discouraged by their prospects over the years and dropped out of school; and deserved a second chance if they fulfilled the other conditions of the executive order. (See DREAMER Deferred Action Questions and Concerns, Immigration Daily, June 25, 2012 http://www.ilw.com/articles/2012,0625-Lee.shtm ). In the August 3, 2012, announcement, U.S.C.I.S. has apparently taken the better route in stating that "To be considered 'currently in school' under the guidelines, you must be enrolled in school on the date you submit a request for consideration of deferred action under this process."

2. DREAMERS with DUI expungements may have hope of applying.

In that same stakeholders meeting, DHS took a tough line on the question of DREAMERS with a DUI being ineligible for the program as a DUI would be considered a significant misdemeanor. That elicited concern from stakeholders. This author believed the position to be too harsh as many DREAMERS are young, being molded still, and make mistakes. Id. DHS has since clarified that driving without a license will not be considered a disqualifying offense, and provided in the announcement that expunged convictions and juvenile convictions would not automatically disqualify an application. DHS stated that "Your request will be assessed on a case by case basis to determine whether, under the particular circumstances, the favorable exercise of prosecutorial discretion is warranted." Such leaves hope for DREAMERS convicted of DUI offenses to qualify with an expungement.

3. DREAMERS will be allowed to travel outside the U.S.

DHS was asked in the stakeholders meeting of June 18, 2012, to allow DREAMERS travel authorization as it had previously said that it was considering the issue. The August 3, 2012, announcement settles the point favorably for DREAMERS in stating that they will be eligible for permission to travel outside the United States after they apply for and receive advance parole subsequent to their being granted deferred action. They would have to file form I-131 Application For Travel Document and pay the applicable fee of $360. U.S.C.I.S. noted that it generally grants advance parole for persons traveling for humanitarian, educational, or employment purposes.

Other clarifications of the August 3, 2012, announcement were that an applicant had to be illegal as of June 15, 2012; that a significant misdemeanor is one for which an individual is sentenced to time in custody of more than 90 days not including a suspended sentence if it is not one of the recognized significant misdemeanors of domestic violence, sexual abuse or exploitation, burglary, unlawful possession or use of a firearm, drug distribution or trafficking, or driving under the influence; that the agency's form will allow for concurrent filing of the employment authorization with the deferred action request; and that affidavits may only be used to fill a gap in the documentation demonstrating that the applicant meets the five-year continuous residence requirement, or a shortcoming in documentation with respect to brief, casual and innocent departures during the five years of required continuous presence.

The positive tone of the August 3, 2012, U.S.C.I.S. announcement and the primary role of U.S.C.I.S. in governing the program will be greatly encouraging to many DREAMERS who may have reservations over whether to apply.

† The author is a 30+ year practitioner of immigration law based in New York City holding an AV preeminent rating in the Martindale-Hubbell Law Directory, registered in the Bar Register of Preeminent Lawyers, and on the New York Super Lawyers list. He was awarded the Sidney A. Levine prize for best legal writing at the Cleveland-Marshall College of Law in 1977 and has written extensively on immigration over the past years for Interpreter Releases, Immigration Daily, and the ethnic newspapers, World Journal, Sing Tao, Pakistan Calling, Muhasha and OCS. He has testified as an expert on immigration in civil court proceedings and was recognized by the Taiwan government in 1985 for his work protecting human rights. His article, "The Bush Temporary Worker Proposal and Comparative Pending Legislation: an Analysis" was Interpreter Releases' cover display article at the American Immigration Lawyers Association annual conference in 2004, and his victory in the Second Circuit Court of Appeals in a case of first impression nationwide, Firstland International v. INS, successfully challenged INS' policy of over 40 years of revoking approved immigrant visa petitions under a nebulous standard of proof. Its value as precedent, however, was short-lived as it was specifically targeted by the Bush Administration in the Intelligence Reform Act of 2004.

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