The Lewis Leeper Blog

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    If I have been convicted of a misdemeanor, can I still qualify for deferred action?

    Only if you were not convicted of a “significant misdemeanor” or of 3 or more misdemeanors. A “significant misdemeanor” is a misdemeanor as defined by federal law (specifically, one for which the maximum term of imprisonment authorized is one year or less but greater than five days) and that meets the following criteria: 1. Regardless of the sentence imposed, is an offense of domestic violence; sexual abuse or exploitation; burglary; unlawful possession or use of a firearm; drug distribution or trafficking; or, driving under the influence; or, 2. If not an offense listed above, is one for which the individual […]

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    I am under a Final Order of Removal and am in ICE custody, can I still apply for deferred action?

    Yes. However, you should not submit your application to the USCIS,  but should identify yourself to your detention officer or contact the ICE Office of the Public Advocate through the Office’s hotline at 1-888-351-4024 (staffed 9am – 5pm, Monday – Friday)

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    I am currently in removal proceedings. How can I apply for deferred action?

    Persons in removal proceedings, those with a final order or with a voluntary departure order may apply for deferred action.  Submit your request to the USCIS.

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    Am I still eligible for deferred action?

    If I am no longer attending school, and do not have a high school degree or a GED, am I still eligible for deferred action? To be considered “currently in school” under the guidelines, you must be enrolled in school on the date you submit a request for consideration of deferred action under this process. So, in your case, you should enroll in school prior to submitting your application for deferred action.

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    If I have traveled outside the United States since June 15, 2007, can I still qualify for deferred action?

    A brief, casual, and innocent absence from the United States will not interrupt your continuous residence. If you were absent from the United States for any period of time, your absence will be considered brief, casual, and innocent, if it was before August 15, 2012, and: 1. The absence was short and reasonably calculated to accomplish the purpose for the absence; 2. The absence was not because of an order of exclusion, deportation, or removal; 3. The absence was not because of an order of voluntary departure, or anadministrative grant of voluntary departure before you were placed in exclusion,deportation, or […]

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    If my application for deferred action is approved, can I travel outside of the U.S.?

    Not automatically. If USCIS has decided to defer action in your case and you want to travel outside the United States, you must apply for advance parole by filing a Form I-131, Application for Travel Document and paying the applicable fee ($360). USCIS will determine whether your purpose for international travel is justifiable based on the circumstances you describe in your request. Generally, USCIS will only grant advance parole if you are traveling for humanitarian purposes, educational purposes, or employment purposes. You may not apply for advance parole unless and until USCIS determines whether to defer action in your case […]

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    If my Deferred Action application is denied, can I be placed in removal proceedings?

    Usually not.  However, there are exceptions, so be very careful.  Below is how the memo explains this: Information provided in this request is protected from disclosure to U.S. Immigration and Customs Enforcement (ICE) and U.S. Customs and Border Protection (CBP) for the purpose of immigration enforcement proceedings unless the requestor meets the criteria for the issuance of a Notice To Appear or a referral to U.S. Immigration and Customs Enforcement under the criteria set forth in USCIS’s Notice to Appear guidance. Individuals whose cases are deferred pursuant to the consideration of deferred action for childhood arrivals process will not be […]

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    If my Deferred Action application is denied, can I appeal?

    You cannot appeal or submit a motion to reopen/reconsider if your application is denied.  However, the memo is silent about whether you can reapply for deferred action if you initial application is denied. In extremely limited situations, you can request a review of the denial. USCIS will implement a supervisory review process in all four Service Centers to ensure a consistent process for considering requests for deferred action for childhood arrivals. USCIS will require officers to elevate for supervisory review those cases that involve certain factors.

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    What forms do I use to apply for Deferred Action, and what are the filing fees?

    You are required to submit form I-821D, Consideration of Deferred Action for Childhood Arrivals. If you are applying for employment authorization, you must also submit forms I-765 and I-765WS. In order to receive employment authorization, you must demonstrate “an economic necessity for employment”. We link to each of these forms and instructions for completing these forms from our Deferred Action page. The total fees are $465. Before deciding your application, DHS will perform a background check on you.

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    Is Deferred Action a law?

    No.  Deferred action is a discretionary determination on the part of DHS.  It is an act of prosecutorial discretion.  The new policy will allow certain foreign-born individuals who entered the United States as children to apply for 2-year work permits, and possibly for extensions.  It is not a path to a green card or to U.S. citizenship.

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