Deferred Action FAQ's

DEFERRED ACTION-FREQUENTLY ASKED QUESTIONS

Q. Is it for real?

A. Yes. The President used his executive authority to approve the change in policy. It does not require approval from Congress.

Q. What does the program do?

A. Will Deferred Action make me legal in the United States?

No. Deferred Action does not confer lawful status upon you, although if your application is approved you will not be accruing unlawful presence in the United States during the period deferred action is in effect. This means that you cannot change your status from “Deferred Action to another nonimmigrant status. It also means that you may still be subject to the ten-year-bar if you leave the U.S.

The fact that you are not accruing unlawful presence does not change whether you are in lawful status while you remain in the United States. Because you lack lawful status at the time DHS defers action in your case you remain subject to all legal restrictions and prohibitions on individuals in unlawful status.
Q. Does deferred action provide me with a path to permanent residence status or citizenship?

A. No. Deferred action is a form of prosecutorial discretion that does not confer lawful permanent resident status or a path to citizenship. Only the Congress, acting through its legislative authority, can confer these rights.


Q. When does it become effective?

A. The announced date is August 15, 2012. However, it may take some time to gather the required information and complete the forms, so we suggest you start soon.


Q Who is included?

A. Individuals who: (1) Were under the age of 31 as of June 15, 2012; (2) Came to the United States before reaching your 16th birthday; (3) Have continuously resided in the United States since June 15, 2007, up to the present time; (4) 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; (5) Entered without inspection before June 15, 2012, or your lawful immigration status expired as of June 15, 2012; (6) 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 (7) 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.
Q. Does “currently in school” refer to the date on which the request for consideration of deferred action is filed?

A. 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. USCIS will allow you to apply for the profram in the future if you complete your GED. We anticipate they will provide a list of approved GED programs.
Q. If we come forward, how can we be sure that the government will not use the information to deport us or our family later?

A. When the government started similar programs in the past (such as TPS, LULAC, SAW and Amnesty) the records of those who came forward have never been used to deport people, even when their applications were denied. Regarding the current Deferred Action program, USCIS says: “Information provided in this request is protected from disclosure to U.S. Immigration and Customs Enforcement (ICE) and U.S. Customs and Border Protection (CBP) for the purpose of immigration enforcement proceedings unless the requestor meets the criteria for the issuance of a Notice To Appear or a referral to U.S. Immigration and Customs Enforcement under the criteria set forth in USCIS’s Notice to Appear guidance.” This means that the information you provide cannot be forwarded to ICE to start deportation proceedings unless you file a fraudulent claim, there are for national security concerns or for the investigation or prosecution of a serious criminal offense. If you file an honest application and you have no serious criminal record, you should not be concerned that your application will eventually result in your deportation.

However, USCIS also reports that, “This policy, which may be modified, superseded, or rescinded at any time without notice, is not intended to, does not, and may not be relied upon to create any right or benefit, substantive or procedural, enforceable at law by any party in any administrative, civil, or criminal matter.”
Q. What does that last part mean?

A. It means that the government is warning that they have no control over what a future president might do.
Q. What offenses constitute a significant misdemeanor?

A. For the purposes of this process, a significant misdemeanor is a misdemeanor as defined by federal law (specifically, one for which the maximum term of imprisonment authorized is one year or less but greater than five days) and that meets the following criteria:

1. Regardless of the sentence imposed, is an offense of domestic violence; sexual abuse or exploitation; burglary; unlawful possession or use of a firearm; drug distribution or trafficking; or, driving under the influence; or,

2. If not an offense listed above, is one for which the individual was sentenced to time in custody of more than 90 days. The sentence must involve time to be served in custody, and therefore does not include a suspended sentence.

However, “the absence of the criminal history outlined above, or its presence, is not necessarily determinative, but is a factor to be considered in the unreviewable exercise of discretion. DHS retains the discretion to determine that an individual does not warrant deferred action on the basis of a single criminal offense for which the individual was sentenced to time in custody of 90 days or less.”

It means that USCIS is reserving the right to deny Deferred Action to people who have significant arrest and conviction records even if they do not necessarily lead to convictions for “significant misdemeanors.” This might include multiple driving while impaired convictions or a history of gang violence.
Q. Will Driving While Impaired be considered a significant misdemeanor?

A. Probably not since it is not a misdemeanor under New York State law, however, even this is not certain since USCIS says it will use a federal standard. We will have to wait and see. But multiple convictions could be used as the basis to deny Deferred Action.

Q. Will DHS consider my expunged or juvenile conviction as an offense making me unable to receive an exercise of prosecutorial discretion?

A. “Expunged convictions and juvenile convictions will not automatically disqualify you,” according to USCIS. This means that it might disqualify you according to the facts in a particular case.

Q. Is there a minimum age to apply?

A. Yes. If you have never been in removal proceedings, or your proceedings have been terminated before your request for consideration of deferred action for childhood arrivals, you must be at least 15 years of age or older at the time of filing and meet the other guidelines.

If you are in removal proceedings, have a final removal order, or have a voluntary departure order, and are not in immigration detention, you can request consideration of deferred action for childhood arrivals even if you are under the age of 15 at the time of filing and meet the other guidelines.

In all instances, you cannot be the age of 31 or older as of June 15, 2012 to be considered for deferred action for childhood arrivals

Q. If I am granted Deferred Action, will I automatically be granted employment authorization?

No. Pursuant to existing regulations, if your case is deferred, you may obtain employment authorization from USCIS provided you can demonstrate an economic necessity for employment.

Q. How does a 15 year-old high school student prove economic necessity?

A. USCIS had not provided detailed guidance on this issue. Clearly if you need to work to support your family or further your education, economic necessity should be easy to show, in other cases it may be difficult or impossible

Q. What documentation may be sufficient to prove I qualify for Deferred Action?

A. Documentation sufficient for you to show that you came to the United States before the age of 16 and that you have lived here for at least five years may include, but is not limited to: financial records, medical records, school records, employment records, and military records. Additional information about what documentation you can submit will be provided on the USCIS website on August 15, 2012.

Q. What documentation may be sufficient to demonstrate that I am currently in school, have graduated from high school, or have obtained a general education development certificate (GED)?

A. Documentation sufficient for you to demonstrate that you are currently in school, have graduated from high school, or have obtained a GED certificate may include, but is not limited to: diplomas, GED certificates, report cards, and school transcripts. Additional information about what documentation you can submit will be provided on the USCIS website on August 15, 2012.

Q. May I file affidavits as proof that I meet the guidelines for consideration of deferred action for childhood arrivals?

A. Affidavits generally will not be sufficient on their own to demonstrate that you meet the guidelines for Deferred Action. However, USCIS will accept affidavits to fill in gaps in your documentation to show that you have lived in the U.S for at least five years or that you were absent from the U.S. for a brief period after your initial entry.

Q. Do I need to show that I have been in the United States continuously since I entered? Do brief departures from the United States interrupt the continuous residence requirement?

A. A brief, casual, and innocent absence from the United States will not interrupt your continuous residence. If you were absent from the United States for any period of time, your absence will be considered brief, casual, and innocent, if it was before August 15, 2012, and:

1. The absence was short and reasonably calculated to accomplish the purpose for the absence;

2. The absence was not because of an order of exclusion, deportation, or removal;

3. The absence was not because of an order of voluntary departure, or an administrative grant of voluntary departure before you were placed in exclusion, deportation, or removal proceedings; and

4. The purpose of the absence and/or your actions while outside the United States were not contrary to law.

Q. What if a qualified person already has a deportation order?

A. The government will halt the deportation of qualified persons and reopen the cases of those previously ordered removed (but still in the U.S.). Individuals who believe they can demonstrate that they qualify for Deferred Action and are about to be removed should contact us immediately at (631) 588-4040 or by email at mczwaik@zwaik.com.

Q. Does it matter if I used fake papers to get a job?

A. It should not matter if you have used fake papers, papers that didn’t belong to you, or a made up number to get a job, as long as you have not been charged with or convicted of fraud. Do not submit any documents with false information on your application.

Q. If I am granted Deferred Action, will I be able to travel outside of the United States?

A. Not automatically. If USCIS has decided to defer action in your case and you want to travel outside the United States, you must apply for advance parole by filing a form I-131 and paying the applicable fee ($360). Generally, USCIS will only grant advance parole if you are traveling for humanitarian purposes, educational purposes, or employment purposes. You may not apply for advance parole unless and until USCIS defers action in your case pursuant to the consideration of deferred action for childhood arrivals process. You cannot apply for advance parole at the same time as you submit your request for consideration of deferred action for childhood arrivals. All advance parole requests will be considered on a case-by-case basis.

Q. What if the visa or passport I used to enter the United States had another person’s name on it?

A. Unless you have been charged with or convicted of fraud, this should not matter.


Q. Will I be able to get a driver’s license?

A. Yes. If you are approved for Deferred Action, you will receive an Employment Authorization Document (EAD) and a Social Security number. You can call your state’s Department of Motor Vehicles or visit its website to see which documents they require.

Q. Will I be able to get a green card?

A. Deferred Action does not, in and of itself, lead to the granting of a green card. If an applicant is otherwise eligible for a green card, there may be a possibility of being granted advance parole status, which could allow a green card to be received via consular processing. But whether advance parole will be available is not yet known.

Q. Will I be able to join the U.S. military?

A. No.
Q. Will I be able to pay in-state tuition for college?

A. If you live in a state that offers in-state tuition rates for undocumented immigrants attending public colleges, you should still be able to get those tuition rates with Deferred Action. These states include New York, Maryland, Texas, New Mexico, California, Utah, Oklahoma, Kansas, Washington, Nebraska, Illinois, Rhode Island, and Connecticut. Colorado just passed a law allowing undocumented residents to pay 150% of in-state tuition.
For other states, it is less clear if immigrants with Deferred Action will get in-state tuition rates. It could also vary between schools. We will be looking into this in the coming weeks.
Q. Can I apply for Deferred Action if I am currently in legal nonimmigrant status in the U.S. or have Temporary Protected Status (TPS)?

A. No. You can only request consideration of Deferred Action if you have no immigration status and were not in any lawful status on June 15, 2012.

Q. How do I file an application for Deferred Action?

A. Beginning August 15, 2012, you will be required to submit your application to USCIS through a form, along with a form requesting an employment authorization document. The total fees will be $465. USCIS is still developing the forms which will be available on August 15, 2012. If you submit an application before that date it will be rejected.
Q. Is the process different if I am currently detained, or are currently in deportation proceedings or already have an order of deportation?

A. Individuals who qualify for Deferred Action including those in removal proceedings, with a final removal order, or with a voluntary departure order (and not in immigration detention), will affirmatively request consideration of deferred action from USCIS through this process. Individuals who are currently detained and believe they meet the guidelines should not request deferred action from USCIS but should identify themselves to their detention officer.


Q. Will USCIS conduct a background check when reviewing my request for consideration of deferred action for childhood arrivals?

A. Yes. You must undergo biographic and biometric background checks before USCIS will consider whether to grant Deferred Action.
Q. Can I obtain a fee waiver or fee exemption for this process?

A. There are no fee waivers available for employment authorization applications connected to the Deferred Action for childhood arrivals process. There are very limited fee Your request for an exemption must be submitted and decided before you submit a request for consideration of deferred action for childhood arrivals without a fee. In order to be considered for a fee exemption, you must provide documentary evidence to demonstrate that you meet any of the above conditions at the time that you make the request. For evidence USCIS will:

• Accept affidavits from community-based or religious organizations to establish a requestor’s homelessness or lack of parental or other familial financial support.

• Accept copies of tax returns, banks statement, pay stubs, or other reliable evidence of income level. Evidence can also include an affidavit from the applicant or a responsible third party attesting that the applicant does not file tax returns, has no bank accounts, and/or has no income to prove income level.

• Accept copies of medical records, insurance records, bank statements, or other reliable evidence of unreimbursed medical expenses of at least $25,000.

• Address factual questions through requests for evidence (RFEs).
Q. Can I appeal USCIS’s determination?

A. No, but USCIS promises that denials will receive a supervisory review within the agency.

Q. Can I extend the period of deferred action in my case?

Yes, under current USCIS policy. Obviously that policy is subject to change, depending upon the results of the upcoming presidential elections.
Q. If my period of deferred action is extended, will I need to re-apply for an extension of my employment authorization?

A. Yes. If USCIS decides to defer action for additional periods beyond the initial two years, you must also have requested an extension of your employment authorization.
Q. Can I qualify for Deferred Action if I had an application for asylum or cancellation of removal pending before either USCIS or the immigration courts on June 15, 2012?

A. Yes. If you had an application for asylum or cancellation of removal, or similar relief, pending before either USCIS or the immigration courts as of June 15, 2012, but had no lawful status, you may request consideration of deferred action for childhood arrivals.
Q. Can I request consideration of deferred action from USCIS if I am in immigration detention by ICE or about to be removed by ICE from the U.S.?

A. No. If you are currently in immigration detention or about to be removed, you may not request consideration of deferred action from USCIS. Instead, you should identify yourself to your detention officer or contact the ICE Office of the Public Advocate so that ICE may review your case.
Q. If I accepted an offer of administrative closure under Prosecutorial Discretion, can I be considered for deferred action under this process?

A. Yes. If you can demonstrate that you meet the guidelines, you will be able to request consideration of deferred action if you have accepted an offer of administrative closure or termination or, for that matter, even if you were considered for administrative closure and either denied their offer under the case-by-case review process. If you are in removal proceedings and have already been identified as meeting the guidelines and warranting discretion as part of ICE’s case-by-case review, ICE already has offered you deferred action for a period of two years, subject to renewal.
Q. What should I do right now?

A. We are now collecting information and opening files, so we can file for the program on August 14th. At this point, there are three things we suggest you do:
1. Gather the necessary documents to prove the date you entered into the United States and that you remained here between June 15, 2007 and June 15, 2012. These include:
• Financial records (lease agreements, mortgage agreements, bank statements, bills)

• Medical records (immunization records, a medical history report from your doctor)

• School records (report cards, progress reports, diplomas, transcripts, GED certificates). You will also need to submit proof of current school enrollment, a high school diploma, or a GED certificate to qualify.

• Employment records (pay stubs, employment contracts, direct deposit slips). Do not use employment records if they have fake information on them.

• Military records

• Any other document or record that will help your case from a church, union, or other organization.


2. Do a background check on your criminal history. Many states have systems for you to collect this information. In many cases, you can find it on your local county website or state government websites. Make sure you get them from all of the states where you believe you may have been arrested or convicted. You should not apply for Deferred Action without doing a background check, even if there is a small chance that you have any sort of criminal record.

3. Stay informed. We are providing regular updates at www.zwaik.com and on Facebook at www.facebook.com/zwaik5014.