On June 15th, President Obama took the bull by its horns and announced his administration's new policy of granting deferred action to certain Dream Act eligible children.  While there is certainly a "whole lotta" politics going on here, if truly implemented (and let's just see if it actually happens), then this is a watershed event in our quest for true Comprehensive Immigration Reform.  As with everything though, the devil is in the details.

So far, the only "details" that we have are outlined in the June 15th Napolitano Memorandum.  Essentially, you MAY be eligible if you fit under the following criteria:

  • you entered the U.S. before the age of 16.
  • you continuously resided in the U.S. since, at least, 6/15/2007.
  • you are currently in school, or have graduated, or have obtained a GED, or served honorably in the US armed forces.
  • you do not have a felony, or a serious misdemeanor offense, or multiple misdemeanor offenses, or otherwise pose a threat to national security.
  • you are under the age of 30.

If you fall under the above elements, you MAY be eligible for deferred action which WOULD entitle you to work authorization for two years at a time.  Presumably, you would be eligible for extensions of that work authorization, although, presidential election results may very well affect whether or not additional extensions are granted.  

In the meantime, if you feel you are eligible, in addition to contacting an experienced and qualified IMMIGRATION ATTORNEY, you should start collecting documents which establish your eligibllity.  Examples include, school transcripts and diplomas (which help to establish the timing of your physical presence in the U.S. as well as your "in school" or "graduated" status).  Other documents which can assist the physical presence requirement include medical records, payroll records, bills, pictures (which are somehow location and date referenced), etc.  In some cases, proof will be easy to obtain.  In other cases, not so easy.  You might need to think outside the box as to how you will clearly establish your physical presence requirement.  You will, of course, also need your birth certificate (to establish your age).  

DO NOT trust this case to an unqualified attorney, and certainly, DO NOT trust this case to a non-attorney.  The fact is that while the announcement might be new, the idea of "Deferred Action" is a mechanism already entrenched in Immigration practice.  Requesting prosecutorial discretion to obtain deferred action can be a complicated process (and it is certainly more complicated than the media would have you believe).  While the Department of Homeland Security has not issued guidance as to how to handle deferred action requests for people not in removal proceedings, it is directed to do so within 60 days of 6/15/2012.  In the meantime, you should be preparing your deferred action request package so that when guidance does come down, you will be ready to send it out.  For those in removal proceedings already, your attorney should be submitting deferred action requests immediately.

Because at the end of the day, what Obama announced was NOT a DREAM Act.  It was action in light of Congressional ineptitude, but ultimately, if this were to become a permanent solution, Congress, not just the President, would have to act.  This is not an automatic grant.  It is discretionary.  As such, it can be denied (especially if not done properly).  Contact a qualified and experienced attorney before venturing into these potentially dangerous waters.  

Dan Ballecer