What is Deferred Action?

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On June 15, 2012, the Department of Homeland Security (DHS) announced the creation of a program called "deferred action" for some undocumented children and young adults who are currently facing deportation proceedings or who could face deportation in the future. Qualifying children and young adults will be granted a two year reprieve from being deportable merely for being undocumented. This grant will be renewable, and it will allow qualifying people to apply for work authorization.

What is Deferred Action? 

Deferred action is a program in which the DHS declines to pursue the deportation of certain people who could otherwise face deportation. Essentially, DHS is saying, "We know you are here without status, and so we could deport you, but we will defer doing that and let you stay for now." Deferred action is not a law; it is a directive from the Obama administration, and so the program could be ended by a future President without having to work through Congress.

Am I eligible for Deferred Action?

Deferred action will be open to any undocumented person who meets the following criteria laid out by DHS, regardless of whether they currently face, or have in the past faced, deportation. According to DHS, you may request deferred action if you:

• Were under the age of 31 as of June 15, 2012;
• Came to the United States before reaching your 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 your request for consideration of deferred action with USCIS;
• Entered without inspection before June 15, 2012, or your 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 or public safety.

Additionally, if you are not facing deportation (i.e., you are not in proceedings and you do not have a deportation order already against you), then you must wait until you are at least 15 to apply.

What crimes could make me ineligible for deferred action?

As stated above, a conviction for a felony, a "significant" misdemeanor, or three or more non-significant misdemeanors makes you ineligible for deferred action, even if these convictions were later expunged or if your sentence was suspended or deferred. A felony is defined as any federal, state, or local criminal offense that could be punished by imprisonment of more than one year—even if you were imprisoned for less than a year, it is a felony if you legally could have been sentenced to more than a year.

A "significant misdemeanor" is a new term established specifically for deferred action, and so DHS will be offering clarifications to what the term means over time. For now, it includes non-felonies involving domestic violence, sexual abuse or exploitation, burglary, driving under the influence, unlawful possession or use of a firearm, and drug distribution or trafficking. It also includes any crime for which you were sentenced to more than 90 days in custody.

For the three non-significant misdemeanors, it is necessary that they arise from three separate acts or schemes of misconduct—if you were charged with three small misdemeanors from the same incident, this alone would not make you ineligible.

It is not clear yet regarding any of the above crimes if convictions from juvenile delinquency adjudications will count as "convictions" for deferred action purposes. But even if they do not, they may be used as grounds to deny your application because deferred action is granted pursuant to the complete discretion of DHS.

Lastly, public safety grounds may be used against you even if you do not have any criminal convictions. For example, if you were arrested due to criminal activities, DHS may use this against you, even if you were not convicted. Also, if you have ever been affiliated or associated with a gang, this could keep you from getting deferred action.

How can I prove my eligibility?

You must show with documentary evidence that you satisfy the first six criteria laid out by DHS, mentioned above, and you must pass a biographic and biometric background check to satisfy the seventh criterion. To sufficiently document these things, you can collect the following documents:

• Proof of Identity (passport; birth certificate with photo identification; or school or military ID with photo);
• Proof you came to the U.S. before your 16th Birthday (passport with admission stamp; Form I-94/I-95/I-94W; school records from the U.S. schools you have attended; any INS or DHS document stating your date of entry (Form I-862, Notice to Appear); travel records; or hospital or medical records);
• Proof of immigration status (Form I-94/I-95/I-94W with authorized stay expiration date; final order of exclusion, deportation, or removal issued as of June 15, 2012; or a charging document placing you into removal proceedings);
• Proof of Presence in U.S. on June 15, 2012 and proof you continuously resided in U.S. since June 15, 2007 (Rent receipts or utility bills; employment records (pay stubs, W-2 forms, etc.); school records (letters, report cards, etc.); military records (Form DD-214 or NGB Form 22); official records from a religious entity confirming participation in a religious ceremony; copies of money order receipts for money sent in or out of the country; passport entries; birth certificates of children born in the U.S.; dated bank transactions; social security card; automobile license receipts or registration; deeds, mortgages, rental agreement contracts, tax receipts, or insurance policies);
• Proof of your student status at the time of requesting consideration for deferred action for childhood arrivals (school records (transcripts, report cards, etc.) from the school that you are currently attending in the U.S. showing the name(s) of the school(s) and periods of school attendance and the current educational or grade level; or U.S. high school diploma or certificate of completion; U.S. GED certificate); and
• Proof you are an honorably discharged veteran of the U.S. Armed Forces or the U.S. Coast Guard (Form DD-214, Certificate of Release or Discharge from Active Duty; NGB Form 22, National Guard Report of Separation and Record of Service; military personnel records; or military health records).

What benefits can I receive from deferred action?

If you are granted "deferred action," you will get written assurance that you are free from the threat of being deported simply for being in the United States without proper documentation. Grants of deferred action will be valid for two years and will be renewable. If you get deferred action, you will no longer be accruing "unlawful presence" in the United States (although your previous unlawful presence can still be counted against you). Deferred action may also help you qualify for in-state tuition at public colleges and for some loans and grants.

Additionally, if you receive deferred action, you will be eligible for work authorization, for which you must show "an economic necessity for employment," which will also be renewable after two years. This means you can get an identification card from the government that will permit you to work legally. The card can also help you get other things like a Social Security number, may help you to be able to open a bank account, and in some states can make you eligible for a driver's license.

If you receive deferred action you will also be able to apply for "advance parole" to travel outside of the United States for humanitarian, educational, or employment purposes, by filing an I-131, Application for Travel Document, with the required $360.00 fee.

What benefits are not included if I get deferred action?

Receiving deferred action will not put you on a path to lawful status in the US, a Green Card, or citizenship (because such authorization can only be granted by Congress). Deferred action will not allow you to bring family members to the US or otherwise help family members in their immigration matters. And while you will no longer be unlawfully present in the United States, you may still face consequences for any prior unlawful status in future immigration matters. Lastly, you will not be eligible for federal benefits such as Medicaid or food stamps.

What risks do I face if I apply for deferred action?

Applying for deferred action entails telling DHS you are here without status. If your application is rejected, you may be placed immediately into deportation proceedings if you meet certain DHS guidelines: for example, if you are determined to be a criminal, a threat to public safety, or involved in fraud. Most of the time, having your application rejected will not lead to deportation proceedings, but the possibility does exist.

Because of this, if you have any criminal arrests or convictions, you should be extremely careful when applying—before you apply, tell your attorney or community service provider about your entire criminal history and get all of your criminal records (either before talking to the attorney/provider, or with their help) so that they can review the records and help you analyze your eligibility and risk-level.

How much will this cost?

The total fee for applying for deferred action together with employment authorization is $465.00, which includes the biometrics/background check fee. Because you will need to renew deferred action every two years, this fee will be necessary every two years. Fee waivers will not be available, and fee exemptions will be available only under extraordinary circumstances, for a select few cases.

FAQs compliments of CARECEN.

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