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Who Qualifies for President Obama's Deferred Action Program for Undocumented Youth?

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Next month President Obama's Deferred Action program for certain undocumented youth, who are commonly referred to as DREAMERs, will go into effect.

When it was announced by President Obama on June 15 the program received a lot of attention, praise, and criticism. Yet, there remains much confusion among the public about what the program is, who qualifies for it, and who doesn't. On Tuesday the Associated Press published an article about the process based on what a Department of Homeland Security spokesman described as "preliminary documents," adding unnecessary grist to the rumor mill.

It's critical to understand that while the Deferred Action eligibility criteria may seem straight forward, immigration law is complicated and an application for Deferred Action can lead to adverse consequences for a foreign national subject to enforcement. Applicants should seek the advice of a licensed immigration attorney before submitting an application for Deferred Action.

To its credit DHS has posted answers to Frequently Asked Questions on its U.S. Citizenship and Immigration Services and Immigration and Customs Enforcement websites.

The details of the application process have yet to be announced, but here are some basic points:

What is Deferred Action?

Deferred Action is a decision by the executive branch to postpone the deportation of a foreign national as an act of prosecutorial discretion. The DHS has the authority to grant Deferred Action to any noncitizen at any stage of the deportation process.

Deferred Action has been used by presidents of both political parties to temporarily stop the removal of foreign nationals for humanitarian reasons; examples include President George H.W. Bush (Salvadorians who fled the civil war), President Bill Clinton (immigrants in need of protection under the Violence Against Women Act), and, more recently, George W. Bush (victims of Hurricane Katrina).

While any foreign national can apply for Deferred Action, in the case of DREAMERs President Obama has decided it makes more sense to focus limited law enforcement resources on the arrest and deportation of dangerous criminals, national security risks and egregious immigration violators.

Who Qualifies For Deferred Action Under The June 15 Memorandum?

To be eligible a person must:

  • Have come to the U.S. under the age of 16;
  • Have continuously resided in the U.S. for at least 5 years before June 15, 2012 and have been present in the U.S. on June 15;
  • Currently be in school, have graduated from high school, have obtained a general education development certificate, or have been honorably discharged from the U.S. armed forces;
  • Have not been convicted of a felony, a significant misdemeanor, multiple misdemeanor offenses, or pose a threat to public safety;
  • Not be above the age of 30.

Applicants will bear the burden of showing they meet all the requirements for Deferred Action. Not everyone who applies will qualify. The USCIS will deny applicants who have been convicted of a felony, a "significant misdemeanor," multiple misdemeanor offenses, or otherwise pose a threat to the national security or public safety. Employment authorization will only be granted to those qualified applicants that can show economic need.

Qualified individuals will fall into three broad groups:

1) Individuals Who Have Never Been Encountered By Immigration Authorities.

Undocumented immigrant youth who have been living in the U.S. but who have never had contact with U.S. immigration authorities will apply directly to the USCIS for Deferred Action and Employment Authorization through a process to be announced in the coming days. DHS is still developing the filing procedure, including forms and filing fees. In the meantime it is important that individuals not apply for Deferred Action until the process is in place. The USCIS will reject any applications filed prematurely.

2) Individuals Already in Removal/Deportation Proceedings.

For DREAMERs already in deportation proceedings ICE is expected to announce a procedure by which qualified individuals may request a review of their case. In the meantime, additional information is available from the ICE Office of the Public Advocate and individuals may request more information about the new process by calling the ICE hotline at 800.351.4024.

3) Individuals Who Have Already Been Ordered Deported By The Immigration Courts.

For those individuals subject to final removal orders a process will be set up whereby they can apply for a 2 year deferral of removal. Importantly, individuals who are about to be removed should immediately contact either the Law Enforcement Support Center's hotline at 855-448-6903 (staffed 9am-5pm Monday-Friday) or by email to EROPPulicAdvocate@ice.dhs.gov. USCIS is expected to provide additional public information on the process within the coming days.

On June 15, the day that homeland security secretary Janet Napolitano issued the Administration's memorandum, ICE trial attorneys were charged with the responsibility of reviewing pending cases to identify those which might qualify for Deferred Action. Reports from the field are that this process is indeed moving forward. But, as with any bureaucracy, cases can fall between the cracks. It is important that individuals be sure their cases are properly considered for Deferred Action.

What Will Happen To Applicants Who Apply For Deferred Action But Are Rejected?

The answer depends on a person's individual circumstances. That's why it is advisable for applicants to seek the advice of a licensed immigration attorney before applying for Deferred Action.

Where Can Applicants Learn More About The Deferred Action Program?

In addition to the information posted by the DHS on its agency websites, the following organizations have information available to the public online and free of charge:

Finally, it is critical to understand that the Deferred Action program announced on June 15 is not a change in the law. It is an enforcement action that creates no new rights or benefits and does not lead to permanent immigration status. Only Congress can change the law.

Hopefully, they'll take the hint.

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