“Deferred action” means that the government will not pursue enforcement against a person for a specific period of time. It does not confer lawful immigrations status or change an individuals’ existing immigration status. Its grant is discretionary on the part of the DHS and, when granted, it can be renewed or terminated at any time.
On August 15, 2012, the US Citizenship and Immigration Services will start accepting applications for Deferred Action for Childhood Arrivals (DACA). This program is in line with the Department of Homeland Security’s Memorandum of June 15, 2012 on prosecutorial discretion for those individuals who came to the US as children. In essence, the Memorandum says that certain young people who do not present a risk to national security or public safety and meet certain criteria will be eligible to receive deferred action for 2 years, subject to renewal, and to apply for a work authorization.
Criteria for Deferred Action
A person may qualify for deferred action if he or she meets the following criteria:
1. Arrived in the US when they were under the age of 16;
2. Continuously resided in the US for at least 5 years prior to June 15, 2012, and were present in the US on June 15, 2012;
3. Currently in school, have graduated from high school, have obtained a general education development (GED) certificate, or are honorably discharged veterans of the US Coast Guard or the US Armed Forces;
4. Have not been convicted of a felony offense, a significant misdemeanor offense, multiple misdemeanors, or otherwise pose a threat to national security or public safety; and
5. Not above the age of 30.
Meaning of Significant Misdemeanor Offense
DHS will deem “significant” any misdemeanor, regardless of the sentence imposed, involving burglary, domestic violence, sexual abuse or exploitation, unlawful possession of firearms, driving under the influence, or drug distribution or trafficking. In addition, DHS will deem significant any other misdemeanor for which an applicant was sentenced to more than 90 days in jail, not including suspended sentences and time held pursuant to immigration detention. Minor traffic offenses and convictions for immigration-related offenses classified as felonies or misdemeanors by state laws (e.g. Arizona SB 1070) will not be considered.
If you have any criminal history, including the cases cited above, it is important to seek the help of an experienced attorney before filing any application for deferred action.
If you meet the criteria for DACA, it is suggested that you gather as many of the following evidence as possible:
1. To establish identity and age, obtain certified copies of birth certificates or passports
2. To prove that the person has the physical presence and continuous residence in the United States, obtain as many of the following documents as possible:
- Passport and I-94 cards
- Driver’s licenses
- Birth certificates of children born in the United States
- Marriage certificates
- Hospital/Medical records
- Financial records, bank statements, personal checks bearing a dated bank cancellation stamp, credit card statements, etc.
- School records
- Employment records
- Military records
- Utility bills
- Tax returns
- Rental Receipts, other dated receipts
- Immigration court records, applications for immigration benefits, correspondence with immigration agencies, etc.
- Letters from employers, attestations from churches, unions and other organizations
3. To prove that the person fulfilled the educational or military service requirements, obtain as many of the following as possible:
- High school diplomas
- GED certificates
- Report cards
- School transcripts
- Reports of separation forms
- Military personnel records
- Military health records
4. To establish that the individual has no conviction of any disqualifying crimes, obtain the following:
- Request for an FBI criminal background check
- Obtain a SCOPE check from Las Vegas Metropolitan Police Department and/or other cities where he resided
- If there are criminal records, obtain complete records of the disposition of the case(s)
The good news about DACA is that according to the DHS, information provided on the form will be kept confidential, including information relating to applicants’ family members or legal guardians, meaning it will not be used for immigration enforcement proceedings, unless the applicant meets current USCIS criteria for referral to Immigration and Customs Enforcement or issuance of a Notice to Appear (NTA) in immigration court.
If you believe that you qualify for deferred action, it is best to ask an experienced immigration attorney for assistance.
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