Deferred Action Update

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Citizen and Immigration Services (USCIS) has released an official update on the President’s immigration executive action plan’s enforcement rollout. (These details were unofficially released with the plan’s original announcement last November.) USCIS’ posting of this update represents its expectation that the mentioned changes in immigration enforcement are here to stay–and that it is working to implement them. The publication mostly concerns its aspects addressing undocumented immigrants.

On February 16th, a judge in Texas put a temporary hold on these parts of the plan. We have a general analysis of the situation here–and a review of the problems in the judge’s ruling here.

DACA Expansion

Deferred Action for Childhood Arrivals, the program that allows certain aliens–that are otherwise deportable–to defer the initiation of removal from the country, will soon be expanded and updated. Previously, it covered a very specific group of people. It was only for undocumented immigrants (1) born since June of 1981 (2) who were taken to the U.S. as children 15 or younger (3) that have maintained a continuous U.S. presence since June of 2007. The expansion has made it so that all undocumented immigrants can apply to defer action–regardless of current age.

Undocumented immigrants will still have to show that they came before the age of 16–but now only need to prove continuous presence starting January 1st 2010. In addition to this, all periods of deferred action will span three years instead of the former two. Concurrently granted employment authorization documents (EADs or work permits) will also cover three year periods. These temporal expansions will cover all future grants of deferred action. Those who wish to seek deferred action under the expanded requirements would have been able submit petitions starting February 18th, but the beginning of the program has been postponed until the legal proceedings finish.

DAPA

Inspired by DACA, Deferred Action for Parental Accountability will work the same way. Undocumented immigrants will be able to petition for deferred deportation in three-year increments, abiding by the same continuous presence requirement. (They too will be eligible for work permits.) The difference is that eligible people will instead consist of undocumented immigrants that had, at the time of the executive action’s announcement, a U.S. citizen or permanent resident child. USCIS had planned on beginning to accept DAPA applications in “mid-to-late May,” but this could be delayed due to the legal proceedings.

Recommendations

Petitions should be sent as soon as possible. This of course means that the required evidence must be gathered with the same haste. However, evidence of arriving before the cutoff age has been a somewhat difficult task for many seeking DACA, and it promises to be harder for those who arrived a longer time ago, as the expansion now allows. While it isn’t much in terms of a legal shield, applying for DACA shows an alien’s desire to follow the law (short of uprooting him or herself and moving to a land he or she hasn’t called home for many years–if truly ever). While those granted deferred action are still “illegal aliens,” if they receive the near-universal accompanying EADs, they no longer must work illegally. This benefit will not only reduce the risk of run-ins with law enforcement–but will bestow economic advantages as well.

Seeking deferred action can be considered a sign of cooperation with U.S. national security and immigration policy goals. While not outright stated, the inverse is probable: refusing to seek it (while also refusing to leave the country) is likely considered a sign of defiance. While unfair, the government may have an unspoken policy of “if you have nothing to hide you have no reason to avoid investigation.” Thus, it is our overwhelming recommendation to seek deferred action as soon as possible. The Law Firm of Shihab and Associates stands ready to review new cases and submit at the opening of applications.

While the acceptance of DAPA petitions will not start for another few months, it is never too early to begin gathering the necessary evidence. It can be difficult to provide some of it, even that which proves the required familial relationship. It is also unclear whether there will be an age requirement for children referenced to obtain DAPA (though there will likely not be). In other places, two additional requirements have been mentioned: (1) passing a background check and (2) the payment of back-taxes. But, on these points this update is silent.

Some undocumented immigrants were brought to this country before the age of 16 several decades ago and have lived here ever since. Most of these people likely have U.S. citizen children by now, meaning that they are eligible for both DAPA and expanded DACA. For these people, it would likely be true that DACA is more desirable due to its lack of back-tax and background check requirements. However, it seems that the likelier someone is eligible for DAPA (via age), the less reliable his or her evidence of arriving before age 16 becomes. Decisions such as which program to apply under and how to fill its requirements are best left to competent immigration counsel.