On Friday, August 3, 2012, US Citizenship and Immigration Services (USCIS) Director, Alejandro Mayorkas, held a conference call to provide information on benefits available under the “deferred action” process. As the label indicates, the benefit granted is “a deferral” of any action that may be taken against the applicant due to unlawful status. Once the period of deferred action ends, the applicant will revert to whatever status (s)he had before the temporary reprieve was granted.
The benefits of the program recognize the plight of children who were brought here by their parents when they could express no objection to it or did not want to be separated from them. Now as young adults they are relegated to a shadowy existence. As a result, anything that changes their predicament is viewed as improvement. However, in closely examining the offer, the dream becomes an elusive promise.
Mr. Mayorkas began his presentation by announcing that applications of childhood arrivals will be accepted for filing beginning August 15, 2012. This is the same date that the application form will first become available. It will require a filing fee of $465 plus $380 for an Application for Employment Authorization (EAD). However, EAD will not to be granted automatically; it must be based on evidence of “economic necessity.”
As I previously explained , the benefit is only for two years. In outlining the requirements to qualify for deferred action, the Director also included a string of cautions that should be considered by all applicants, but are likely to be ignored.
Preliminarily, it is important to understand that the decision to grant or deny each application is discretionary. There is no guarantee that a case will be granted; neither is there available an appeal nor a motion to reopen an adverse decision. Mr. Mayorkas also reminded his audience that deferred action does not provide a pathway to permanent status, nor does it excuse prior unlawful presence. And because it is not a law enacted by Congress, it may be revoked or modified at any time. At best, the benefit can provide employment authorization and will stop accrual of unlawful presence during the granted period, but it will again be counted once the benefit ends. The only exception is for children under 18. On the other hand, if the benefit is denied, the case will likely be referred to Immigration Court for removal proceedings.
The above caveats make it imperative that an experienced and competent immigration lawyer prepare the case. There is nothing simple about immigration law; it has never been a matter of just filling out forms. To be successful, it is necessary to understand the underlying law and regulations behind each bit of information being elicited by each question of the application. And of course, each application must be supported by adequate and credible documentation and evidence.
A portion of the USCIS presentation was dedicated to the problem of the unauthorized practice of law (UPL) and notario fraud. The USCIS has posted a warning of this pitfall. It is critical to understand that any false information in the application process will be treated as fraud and the applicant will be placed in removal proceedings. This would put the applicant is a worse and likely irreparable position than prior to filing. To help avoid victimization and to take action if injury occurs, see here.
The USCIS has posted preliminary information on eligibility and required documents to support the application. The same site lists frequently asked questions (FAQ) as well as criminal violations that would prevent eligibility for deferred action. The USCIS will post additional information about the process on August 15.