WHO IS ELIGIBLE FOR “DEFERRED ACTION”?
by David Sperling, Esq.
The registration period for “DREAMers,” or undocumented immigrants who came to the United States during their childhood, started on Aug. 15. There is no deadline. Officially, the program is called “Deferred Action for Childhood Arrivals” (DACA).
Basically, this program, announced on June 15, will give certain undocumented immigrants the opportunity to obtain employment authorization and to stop deportations. According to government officials, an undocumented immigrant may apply for consideration for Deferred Action if the applicant:
Was under the age of 31 on June 15, 2012;
Came to the United States before the age of 16;
Continuously resided in the United States for a minimum period of 5 years before June 15, 2012;
Was present in the country on June 15, 2012 and at the time of the application to be considered to receive Deferred Action;
Came to the U.S. without inspection before June 15, 2012 or legal immigration status expired on or prior to June 15, 2012;
Is currently enrolled in school, has graduated from high school or possesses a General Education Diploma (GED);
Has not been found guilty of a felony, a “significant” misdemeanor or three or more misdemeanors, and does not represent a threat to national security or to public safety.
An applicant is eligible notwithstanding a prior deportation order or a brief trip outside the United States.
According to my preliminary analysis, there are several important points to consider for candidates on Long Island.
Applicants have to demonstrate that they have completed high school, are currently enrolled, or are in a GED program or its equivalent. Many individuals who may be eligible have not completed high school or will have to enroll in a GED before they are eligible.
Salvadorans and Hondurans with Temporary Protected Status (TPS) will not be currently eligible, but may qualify if TPS is terminated. No one who has legal status qualifies for this program.
Immigrants with a conviction for driving under the influence of alcohol or drugs (DWI) in New York are not eligible – no matter the level of the offense. Immigration officials consider DWIs as a disqualifying “significant misdemeanor. However, an individual with up to two lesser misdemeanors may apply.
Youth who have not attained the age of 15 may apply once they turn 15 as long as they have been in the country for 5 years prior to June 15, 2012. There is no deadline date on which to apply.
Immigration officials have discretion in each case with respect to the final decision as to whether or not Deferred Action is proper.
The age of the applicant is “frozen” as of June 15, 2012. For example, if an undocumented immigrant is 30 years old today and obtains a GED in two years, he or she may apply in the future at any age.
Many people will ask: is it necessary to hire a lawyer for this process? As a lawyer with 17 years of immigration law experience, my response is that one should definitely hire a good attorney or a legitimate non-profit organization, such as CARECEN or Catholic Charities. This is an investment in the future – don’t risk it to save a few dollars. Avoid “notarios” and others who are not competent or, worse, those who are swindling young people. There is no “special list,” and no one can give “special” services. The fee to the government is $465, which includes a work permit.
It is especially necessary to have an attorney or a representative from abona fide non-profit agency if the applicant came to the United States five, six, or seven years ago, and the applicant does not have substantial proof of presence in the country. Also, an applicant should definitely retain an attorney if he or she has a criminal record.
Please remember that there is no deadline date for this program. The best practice is to do it correctly, not quickly.
Personally, I have no doubt that those who qualify for this program will qualify in the future when the DREAM Act finally passes Congress. The current program is a temporary step until the law is approved. This law will give permanent residency to those “DREAMers” who have completed at least two years of college or two years in the armed forces.
Now is the time to take advantage of this great opportunity for undocumented young people to obtain a good education and strive to realize their dreams.