Deferred Action Program for Undocumented Youth

In June, President Barack Obama announced a plan to implement a new Deferred Action program for undocumented youth in the United States. Deferred Action is a provision associated with the larger DREAM Act, aimed at Development, Relief, and Education for Alien Minors. Although the U.S. Congress has not passed the comprehensive set of immigration reforms contained within the DREAM Act, the implementation of Deferred Action allows authorities to postpone the deportation of foreign national youth.

The program utilizes a process called prosecutorial discretion, which gives authorities the responsibility of deciding to what degree they should enforce the law on an individual basis. In determining whether to exercise this discretion and pursue Deferred Action, officials can refer to the eligibility guidelines as defined in the U.S. Immigration and Customs Enforcement (ICE) memorandum from June 17, 2011.

The Deferred Action program offers undocumented youth a chance to remain in the United States. As described by the U.S. Department of Homeland Security (DHS) memorandum from June 15, 2012 , individuals will first be classified by one of three broad categories, and then must meet five different strict criteria to be eligible for Deferred Action. The three categories separate youth by their level of previous contact with U.S. immigration authorities, with each category using a different application procedure.

1. Those who have never been encountered by U.S. immigration authorities
Undocumented youth who have never been in contact with authorities will be able to apply directly to the United States Citizenship and Immigration Services, or USCIS, for Deferred Action and Employment Authorization. Until the application process is implemented, it is important that individuals do not prematurely apply, as all received applications will be immediately rejected by the USCIS.

2. Those who are already faced with removal or deportation proceedings
For those undocumented youth who have already encountered U.S. immigration authorities and are facing removal or deportation, a procedure will be implemented that allows qualified individuals to plea with ICE officials to review their case and see if they qualify for Deferred Action.

3. Those who have already received deportation or removal orders
Undocumented youth who were issued final removal orders by U.S. immigration courts before the June 15 memorandum will be able to apply for a two-year deferral of removal, and, if accepted, will not have to leave the United States at this time.

After distinguishing how they are classified, individuals must meet all five conditions to be eligible for Deferred Action:

A person cannot be over the age of 30.
A person must have come to the United States before the age of 16.
A person must have been in the United States on June 15, 2012, when the memorandum was announced, and must have lived in the United States for at least five consecutive years prior.
A person needs to be currently enrolled in school, have graduated from school, have attained a general education development certificate, or have been honorably discharged from the United States armed forces.
A person must not pose a threat to public safety or have been convicted of a felony or any other offense, such as a serious misdemeanor.

It is important to note with the Deferred Action program that not everyone who applies and meets these criteria will be accepted. Those who consider applying may wish to consult with experts in the field of immigration law, which in the United States is very complex. If an individual applies and is rejected, the steps taken at that point will depend on the individual’s personal circumstances – there is no definite guarantee that he or she will be able to remain in the United States or will be issued a deportation order to leave the country.

Though the Deferred Action program has received both praise and criticism since it was announced, it is important to note that Deferred Action does not reflect a change in the law. Foreign nationals who qualify will not be issued a green card or permanent citizenship, but instead will be given a two-year work visa, as outlined in a recent DHS memorandum.

The USCIS website states that the Deferred Action program is set to begin within 60 days after the June 15 memorandum, with more information on policies and procedures being released in the coming weeks.