As many of you may have heard or seen, President Obama and Department of Homeland Secuirty Secretary Janet Napolitano announced a shift in the administration’s policy. The administration is now offering “deferred action” to certain qualifying foreign nationals. It is called Deferred Action for for Childhood Arrivals (DACA). It is critical to understand this is NOT amnesty, it is NOT lawful permanent resident status (green card) nor is it a path to status. It is a deferral of enforcement action for certain qualified people.
Foreign nationals granted this benefit of deferred action will receive work authorization which then allows them to obtain a drivers license and social security number.
- a person must have entered the US before they turned 16,
- must be in high school (or have graduated or received their GED),
- not be over the age of 30,
- lived here for 5 years and
- not convicted of certain crimes (felonies, “significant misdemeanors,” and/or three or more misdemeanors in total).
The idea and rationale is that a person who was brought across the border at a young age and has done the right things within the society and not sat on their rights should not be punished for the sins of their parents (the initial unlawful entry or visa overstay).
There are some critical issues that must be addressed in the case-by-case analysis.
The language regarding “significant misdemeanors” immediately jumps out at me. The FAQ that DHS posted indicates convictions for routine DUI’s and domestic violence charges are some of the disqualifying criminal activity. There are versions of these statutes that don’t trigger removal. Will USCIS accept argument that because these statutes do not trigger removal that they therefore do not qualify as “significant misdemeanors?”
Another issue is unlawful presence. When will the stay of unlawful presence begin? I’d encourage the argument to be as of 6.15.2012 (the date of the memorandum) so long as the request for deferred action be filed within a reasonable period hereafter. This would permit many of the graduating high school students to immediately go to college, get their degrees and be able to apply for H-1B’s, consular process and return without any unlawful presence bars.
There are other issues that will arise in the course of the next few months. However, it is especially important for all of us to identify minors who could benefit from this policy and to get their cases filed thus protecting them from not only enforcement actions but also from accruing unlawful presence (which begins at age 18) so if they want to depart and enter lawfully (resetting their status) they can.
Please, if you or a relative or someone you know may qualify for deferred action, have them contact us immediately.