Is this reality or am I just DREAMing? All puns aside, the Obama administration announced on Friday that it will implement a modified “DREAM Act” administratively until Congress chooses to act, granting relief from deportation to thousands of promising young children. The change in policy was announced by the Secretary of the Department of Homeland Security, Janet Napolitano, and summarized by President Obama in an early afternoon announcement (video).

This policy shift means that Homeland Security officials may expand the use of prosecutorial discretion – the ability to choose whether or not to prosecute certain immigration violations – and grant deferred action to certain individuals. The policy is effective immediately, and offering deferred action to certain young people. The policy change is meant to aid young adults brought to the U.S. as children, who entered or remained without authorization through no fault of their own. If you meet the criteria set out in the memo, then you will be eligible for deferred action, and a work permit, in two year increments.

This landmark shift is meant to implement, administratively, the DREAM act that Congress has thus far been unable to pass despite broad support for its ideals. President Obama stated that this policy shift is a reasonable, humane response to a flawed immigration system. He stated that it “makes no sense to expel talented young people” and this change is “the right thing to do.”  Congress has failed to pass the DREAM Act every year since it was first introduced more than a decade ago, in 2001.

It is extremely important that you do not request deferred action yet!  Secretary Napolitano made the announcement on June 15, 2012, and allowedU.S. Citizenship and Immigration Services (USCIS) up to 60 days to develop and implement a special procedure for this deferred action. Until the application procedure is announced, USCIS will reject any applications, and this could result in negative action being initiated.

Who is Eligible

The Deferred Action Process for Young People memorandum indicates that the policy change will benefit young adults who entered the U.S. as children, and who meet residence requirements and demonstrate good moral character. The requirements include:

  • Age. The applicant entered the U.S. before they turned sixteen, and is not now over 30 years old.
  • Residence. The applicant must show that they continuously resided in the U.S. for at least five years prior to June 15, 2012.
  • Education. The applicant must meet certain education requirements, or pursuing them. The applicant must (a) be currently in school; (b) have graduated from high school; or (c) have earned a GED (general education development).  USCIS will also consider honorably discharged veterans.
  • Background Check. The applicant will undergo a background check, and to “pass” must not have been convicted of a felony offense, a significant misdemeanor offense, or multiple misdemeanor offenses. Those who are deemed to pose a threat to national security or public safety will also be excluded from deferred action.

Prosecutorial Discretion – how do I ask for it?

The procedure to apply for deferred action has not been established yet, but should be announced within 60 days from June 15, 2012. The procedure will differ depending on your “status”. Those not in removal proceedings or subject to a final removal order will submit a petition to USCIS requesting deferred action. Please consult an immigration attorney prior to applying to ensure you qualify! Applicants who do not qualify, and who request relief, will risk initiating negative action including removal (deportation) proceedings. If you are in removal, or have an order of removal, ICE will handle the request.

Individuals may call the government hotlines for more information: USCIS’ hotline is 1-800-375-5283 and ICE’s hotline is 1-888-351-4024. We recommend consulting an immigration attorney prior to contacting ICE or USCIS!

Deferred Action – what is it, and how does it work?

Deferred action is the government proactively choosing to “not act” for a period of time – in this case, two years.  The government is essentially choosing to defer deportation for that period of time. This does not grant lawful status to the applicant, however it does stop you from accruing any additional unlawful presence time.

While you are granted deferred action, you are eligible for employment authorization for those two years as long as you can demonstrate the economic necessity for your employment.

If you are in removal proceedings, or about to be removed, please contact our office immediately for assistance.

What to do Right Now

Your first priority is to contact an immigration attorney – you can contact me by email or at 404-913-1529. You also need to being collecting all the documents that will prove that you are eligible, based on the criteria above. This will include proof that you have been physically present in the U.S. for five years prior to June 15, 2012 – tax returns, school records, medical records, bank records, photos, and utility bills. You will also need to show that you were in the U.S. on June 15 and continuing until you apply, so continue gathering these types of documents.

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