The President and the Secretary of the U.S. Department of Homeland Security (DHS) have announced a policy for DHS to grant "deferred action" and work authorization to certain students and young adults who otherwise might be removable ("deportable") from the United States. Deferred action in general is a DHS decision not to pursue enforcement against a person for a specific period of time and allows recipients to apply for an Employment Authorization Document (commonly known as "work authorization").  This is a real, but limited, step that has engendered national discussion about the proposed Development Relief and Education for Alien Minors Act (the "DREAM Act"), which at its core provides a form of relief to certain students and young adults who are out of status through no fault of their own and a pathway to citizenship.  Although the Deferred Action Program mirrors the DREAM Act, it does not provide a pathway to lawful permanent resident status or citizenship; rather it prevents qualifying applicants from being deported and enables them to apply for work authorization. 

Eligibility for Deferred Action Program

As of June 15, 2012, qualifying applicants must meet all of the following criteria:

1. Have come to the U.S. under the age of 16;
2. Have continuously resided in the U.S for at least 5 years prior to June 15, 2012;
3. Have been physically present on June 15, 2012;
4. Currently be in school, have graduated from high school, have obtained a general education development certificate, or are honorably discharged veterans of the Coast Guard or Armed Forces of the United States;
5. Have not been convicted of a felony offense, a significant misdemeanor offense, multiple misdemeanor offenses, or otherwise pose a threat to national security or public safety;
6. Not be above the age of 30; and
7. Be age 15 or older to request deferred action affirmatively from U.S. Citizenship and Immigration Services (USCIS) (as opposed to those facing removal by Immigration and Customs Enforcement (ICE) or Customs and Border Protection (CBP), who can apply even if under age 15).

Evidence to Establish Eligibility

The process for applying affirmatively under the Deferred Action Program will be implemented by August 15, 2012.  However, eligible applicants should begin assembling the following:

1. At least 6 passport style photos;
2. Travel records;
3. Financial records;
4. Medical records;
5. School records, such as transcripts and diplomas;
6. Employment records;
7. Birth certificates (with translation) or Passport.

Uncertainties about Eligibility

"Continuous residence" in other immigration laws and rules generally has allowed for some limited absences - sometimes with very specific guidelines such as 90 days at a time or 180 days total, but broken by service of removal papers or by departure under threat of removal. DHS seems to have chosen the term intentionally to allow people to qualify for deferred action even if they were physically absent for limited periods during the five years of "continuous residence" in the U.S., but DHS will need to articulate any bright line rules for deferred action.

It does not appear that normal rules of inadmissibility will apply except concerning criminal convictions and national security issues. This means applicants will not need to show how they can support themselves, and it won't matter how long they have been "unlawfully present" or even if they made misrepresentations in immigration matters.

The Application Process

Someone eligible for deferred action who is already in the process of being removed from the U.S. or is about to be deported can immediately bring the matter to the attention of ICE or CBP to stop the removal. People facing removal may contact the ICE Office of the Public Advocate atEROPublicAdvocate@ice.dhs.gov (website at http://www.ice.gov/about/offices/enforcement-removal-operations/publicadvocate), the ICE hotline at 1.888.351.4024, or the Law Enforcement Support Center's hotline at 1.855.448.6903

People not in removal proceedings (including those subject to an outstanding order of removal that is not actively being enforced by ICE) will need to file a paper application to (USCIS) using procedures that will not be available by August 15, 2012.  USCIS most likely will designate a lockbox facility to receive and scan applications (probably Forms I-131 and I-765, with supporting proof), process filing fees (amounts not yet known), and forward to USCIS offices to schedule biometrics intake (for background screening against DHS and FBI databases) and possibly local interview and USCIS offices.

Applicants may call the USCIS hotline at 1.800.375.5283 for limited information. We do not know how long USCIS will take to process applications, but we expect DHS to announce that people with receipt notices should not be removed by enforcement officers before adjudication of their deferred action applications.

Results of Approval of the Deferred Action Program

As a practical matter, approval will allow someone to live, travel and work anywhere in the U.S. during the period of authorized deferred action.  DHS will approve deferred action and work authorization for 2 years at a time.  Those approved will be able to apply for extensions if the government in its complete discretion decides to consider such applications.  The program may be terminated at the direction of any president of the U.S. 

Deferred action will not automatically benefit any family member of the applicant - not parents who may have brought the person here and may be taking care of the person, not anyone the person may have married and not children the person might have obtained.

DHS has stated that it will not use information from a denied deferred action application to pursue the person for removal or prosecution unless fraud or criminality is revealed.

The question of what to do about people who have grown up in the U.S. unlawfully has long been a political topic and the new DHS policy will likely intensify the discussion and possibly lead to more action.