10 Things We Know From the New Guidance Released By DHS on Deferred Action Today

The long-awaited conference call and release of materials regarding DREAM Act deferred action finally occurred today.  While there are many questions left about the process of deferred action for certain undocumented youth, we learned a number of important things about how the Citizenship & Immigration Service will implement the deferred action program:

  1. CIS is creating a form that will accompany a form I-765 application for employment authorization and total filing fees will be $465.  The fee had been reported in the past, but is confirmed now.  When an agency generates a new form, it is required to be cleared by the Office of Management and Budget (OMB).  Although CIS has stated that they intend to publish the form on August 15, 2012, that could be held up by delays from OMB.
  2. Individuals granted deferred action will be eligible to seek advance parole so that they can travel.  There will be no advance parole available while the application is pending.  Advance parole will be granted for travel for humanitarian, educational or employment purposes and will be decided on a case-by-case basis.
  3. Short departures from the U.S. will not affect qualifying for the five years of continuous residence.  Departures deemed to be “brief, casual and innocent” will not interrupt the period of continuous residence.
  4. We know more about what is and what is not a “significant misdemeanor.”  Today, the CIS stated that offenses of “domestic violence, sexual abuse or exploitation, burglary, unlawful possession of a firearm, drug distribution or trafficking or driving under the influence” will be deemed significant misdemeanors.  This is substantially less restrictive than the original June 15, 2012 memorandum which had included offenses of simple assault, drug possession and other minor offenses as significant misdemeanors.  These and other offenses will be considered significant misdemeanors where a served prison sentence exceeds 90 days.   The guidance makes it clear that the 90 day sentence refers to time served and not suspended sentences, which is a welcome departure from the general rule in immigration.  This is a huge improvement.
  5. Misdemeanor offenses where a sentence of less than 90 days is imposed and are not “offenses of “domestic violence, sexual abuse or exploitation, burglary, unlawful possession of a firearm, drug distribution or trafficking or driving under the influence” will be, generally, deemed not to be significant misdemeanors.  However, CIS has indicated that they will take a “totality of the circumstances” approach which could result in denial even where these factors are not present.  CIS has also stated that minor trafficking offenses, such as driving without a license, will not be considered significant misdemeanors, but did repeat the caveat that CIS will take a totality of the circumstances approach.
  6. CIS has stated that individuals who apply and fail to prove that they qualify for deferred action will only be placed into removal proceedings if they fall into certain enforcement priorities.  Last November, CIS restricted the issuance of Notices to Appear in removal proceedings to limited classes of removable individuals.  This memo will continue to guide when CIS issues notices to appear.  Very generally, where an applicant is found ineligible for reasons other than national security,  fraud or criminal ineligibility, they will NOT be placed into removal proceedings.  For example, applicants who can not prove physical presence on June 15, 2012 and do not fall within those classes should not be placed into removal proceedings.
  7. Affidavits, generally, will not count as sufficient evidence to prove age, physical presence, age at the time of entry, or enrollment or graduation from school.
  8. “Currently in school” means enrolled in school as of the date of application.
  9.  Expunged convictions and juvenile convictions will not necessarily disqualify an individual.
  10. Confirmation that individuals with final orders of removal should apply to CIS and not ICE, after August 15.

Things we still do not know:

  1. Will enrollment in classes and registration for the GED count as “currently in school” or must an individual pass the GED before applying?
  2. Will the form be ready on time?
  3. How will the exercise of discretion be monitored and reviewed?  The new guidelines give adjudicators a lot of leeway in evaluating the totality of the circumstances.  How will that process be made uniform between individual adjudicators?
  4. Where do we file?  Anticipated processing time?

Please recall that individuals should not apply affirmatively at this time unless they are in real proceedings.  CIS will not accept any applications yet.  CIS has stated that the forms and filing instructions will be available on August 15, 2012.   We will keep you informed on the process as more details become available.

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