DO YOU QUALIFY FOR DEFERRED ACTION?

Let’s say you were 12 when you arrived in the U.S. with your parents. You spoke no English and went right to school. You didn’t know at the time that your parents came here without legitimate documents and just being here was a huge risk. You learned English, made friends, learned to live like other American kids, and helped your parents who don’t speak English as well.

Now you’re 21 and quite excited at the prospect of applying for residency. Or can you? Actually, Deferred Action does not provide the possibility for permanency, residence or citizenship. If you meet the criteria for Deferred Action because you were younger than 16 when you came here, you finished school here, you have lived in the U.S. more than 5 years prior to June 15, 2012, you will be able to obtain a social security number, a valid driver’s license, and a work permit based on economic necessity – all great tools for increased income, security, and a brighter future. However, you will only be able to enjoy a terrific career after going to a 4-year college if the program is renewed or a more permanent solution passes Congress (current program is only for two years). Your work permit and driver’s license are temporary until the next step is designed after the two years have expired. At least you have a reprieve and a chance to step closer to permanency.

But what if you were arrested when you were 19 for suspicion of gang activity? Even if that was a wrongful arrest, it can raise a red flag in the application for Deferred Action. The fact that you have tattoos (gotten at 18) and were seen near a gang didn’t exclude you from the arrest and has left a blemish on your record that can be questioned. Until August 15, 2012, U.S. Citizenship and Immigration Services (USCIS) isn’t accepting ANY applications. They are not ready; they don’t have a system. Still, according to their guidelines, you are eligible as long as you haven’t been convicted of a felony offense, a significant misdemeanor offense, multiple misdemeanor offenses, or pose a threat to national security or public safety. Since having tattoos and NOT being involved in a gang or a gang’s activities does not constitute an offense, there is good reason you will be considered for Deferred Action.

Let’s look at another situation: What if you have a close friend who was arrested for DUI? He was pulled over after leaving a family party. He didn’t think he was speeding or swerving, but he had one last shot and got into his car to go home. At 2 a.m., on a quiet street, that last shot got him in trouble. His options were to accept the ticket by pleading guilty or hire an experienced traffic attorney to represent him. He plead guilty and put it behind him. Your friend may not qualify for Deferred Action because it is considered a significant misdemeanor.

USCIS defines a significant misdemeanor as a federal, state, or local criminal offense that may be accompanied by imprisonment and involves violence, threats, assault (including domestic violence); sexual abuse or exploitation; burglary, larceny, fraud, driving under the influence of alcohol or drugs; obstruction of justice or bribery; unlawful flight from arrest, prosecution, or the scene of an accident; unlawful possession or use of a firearm; drug distribution or trafficking; or unlawful possession of drugs.

Even if convicted, your friend may file for Post-Conviction Relief and if successful the DUI will not be an impediment to his application. For more information on DUI download our The Truth About Your DUI, got to our blog, and you can always contact one of our attorneys to evaluate your options.

If, on the other hand, you attended school, you have no prior arrests, then you can begin the process of application for Deferred Action. As soon as the USCIS has developed a system of accepting and reviewing applications, you will be able to apply.

I am concerned about the definitions and clarity of this program. Some issues to look out for when full guidelines are issued:

  • Will there be ramifications for your family members if you apply and are denied?
  • The definition of multiple misdemeanors can traffic violations make you ineligible?
  • Will rehabilitation and other favorable circumstances be considered in the review process?
  • What guidelines will be used to determine if you are a threat to public safety?

These questions and more information will follow in other articles. Keep checking my website for additional, helpful information and feel free to contact my office with any questions you may have.