The following provides a brief synopsis of the FAQ issued by USCIS regarding preliminary guidance for deferred action requests for childhood arrivals. Final guidance is expected to be issued on August 14, 2012, however, Immigration is unusually specific with respect to its requirements so far.
1. Clarified that even those who are over the age of 30, but under the age of 31 will still qualify.
2. Applicant must have been out of status on June 15, 2012 to qualify.
3. August 15, 2012 will be the earliest date to submit your application and it will be on a specific form (not yet available) and it will be filed along with the work permit application, which will require a fee of $465.00 (including biometrics fee)
4. Applicant must be at least 15 years of age at the time of filing.
5. Applicant must be ENROLLED in school on the date that the request is made.
6. Brief casual departures during the period of continuous physical presence (June 15, 2007 to June 15, 2012) WILL NOT disqualify applicant from eligibility. [Ed. Note: Cases which involve any departure from the U.S. are often times complicated fact specific cases which should be carefully presented].
7. Apparently, travel outside of the U.S. will be permitted if the Applicant has been approved for travel (via an Application for Advanced Parole). Such applications will be judged on a case-by-case basis. [Ed. Note: I, almost without exception, advise against foreign travel even with a Travel Document].
8. Criminal Offenses. Felonies, three or more misdemeanor offenses or one serious misdemeanor conviction will disqualify Applicant. First of all, minor traffic offenses such as Driving without a License apparently will NOT be counted towards the three or more misdemeanor offense criteria. However, it will be considered along with all other evidence as to whether Immigration will approve the application. Second, serious misdemeanor offenses include: Domestic Violence, Sexual Abuse or Exploitation, Drug Distribution or Trafficking, or DUI. [Ed. Note: Simple Drug Possession does not seem to be included in the FAQs as a “serious misdemeanor offense”]. However, regardless of type of misdemeanor, if Applicant actually served more than 90 days in jail, it will be considered a “serious misdemeanor”.
9. Expunged convictions will not automatically disqualify Applicant. These cases will be dealt with on a case-by-case basis.
10. If Applicant’s request for Deferred Action is denied, Immigration WILL NOT refer that individual for removal proceedings if the case does NOT involve a criminal offense unless exceptional circumstances exist. [Ed. Note: While I believe that all applicants should, at least, consult with an experienced immigration attorney before applying, I firmly believe that all Applicants MUST consult with an attorney if the Applicant has any type of criminal conviction at all BEFORE deciding to apply for deferred action].
11. Fee waivers will be rare. [Ed. Note: This should mitigate the concerns of those concerned with the up front costs of this program. Regardless, however, in my opinion, this program will be extremely beneficial to the economy in the long run].
12. There will be no appeal or motion to reopen or reconsider denials. [Ed. Note: This is consistent with current immigration practice. In other words, when you apply, make sure it presents the strongest case possible for you because you will not get a second chance].
13. Affidavits alone [evidence towards any of the elements of eligibility] will not be sufficient. At most, they could be supplemental, but alone they will not satisfy any of the elements. If only affidavits were submitted as proof of eligibility for any of the elements, then a Request for Evidence (RFE) will be issued to allow the Applicant to provide further proof. [Ed. Note: Immigration does not HAVE to provide an RFE before denying the application, so Applicant should ensure that he submits proof other than affidavits along with his initial application for all of the eligibility requirements.].
14. Applicants who meet the qualifications of these guidelines who are arrested by ICE or Border Patrol can call a toll free number 24 hrs/7 days a week. ICE and CBP should exercise their discretion before arresting these individuals.
15. There is no such thing as an expedited fee.
We are still awaiting final guidelines, however, the above clarifies many of the earlier questions that arose after the June 15th Napolitano Memorandum. Remember, even if one "easily" falls into the above requirements, Immigration is NOT required to approve the application, It remains a discretionary grant.
As I have always said, what on its face may appear simple, can actually be quite complicated. You only have one shot at this, so proceed with extreme caution.