How immigrants are redefining 'American' in Southern California

A legal expert interprets the new DHS deferred action guidelines for young immigrants

Screen shot 2012-08-06 at 1.59.15 PM

Screen shot from uscis.gov


On Friday, officials from U.S. immigration and Customs Enforcement released new guidelines on that they're calling “deferred action for childhood arrivals,” DACA for short. Since mid-June, when the Obama administration announced it would allow young undocumented immigrants who meet certain criteria to apply for temporary legal status and work permits, the agency has been working to formalize the application process and clear up a long list of questions.

The applications aren't ready yet, but the application period is set to start Aug. 15, a date that hundreds of thousands of young people have been gearing up for since June.

How to interpret the guidelines? Last month, Telemundo legal expert and immigration attorney Alma Rosa Nieto provided her take on how those who were either slightly too old (over 30) for the deferred action plan or otherwise almost-but-not-quite qualified might be affected, and whether there was any wiggle room. At the time, the rules were still unclear. Now that they've become clearer, Nieto revisits deferred action with an interpretation of the new guidelines.

And yes, there are still questions to be answered.

M-A: So what are the main things the new guidelines clarify?

Nieto: It makes the application process "confidential," meaning that "Dreamers" (young people who arrived in the U.S. as minors who would qualify for the proposed Development, Relief and Education for Alien Minors Act) can apply without fear of deportation or having their information used by U.S. Immigration and Customs Enforcement against them.

Exceptions to the confidentiality rule occur, however, if DHS determines the applicant has committed fraud, has a criminal conviction or poses a threat to national security.

The application fee has been set to $465.00 per applicant. There are fee exemptions for individuals who meet certain criteria. The actual application has yet to be released, but will be available on August 15, 2012.

One unanswered question had surrounded travel, and applicants will be able to travel outside of the U.S. with an advance parole if they can demonstrate a humanitarian, employment or educational need for travel.

However, this is important: Individuals choosing to travel on an advance parole should be aware that triggering unlawful presence as an adult may have repercussions on their ability to obtain permanent residency in the future.

And there is good news for those over the age of 18 who have not finished their high school degree. Once a GED is obtained, they too will be eligible to apply for deferred action.

There are no appeals nor motions to reopen if the application is denied!

M-A: What about in terms of criminal offenses? Is anything clearer than before?

Nieto: Yes. We now have a list of specific convictions that render an applicant ineligible.

You are ineligible if you have been convicted of a felony, a significant misdemeanor or three or more misdemeanors, or significant misdemeanors which disqualify an applicant and are defined as: firearm convictions; domestic violence; distribution and trafficking of drugs; driving under the influence of alcohol or drugs; sexual abuse or exploitation; burglary; or any misdemeanor with a 90-day or more sentence imposed, regardless of time served.

Minor traffic offenses do not disqualify an applicant!

M-A: Are there still unanswered questions? What are they?

Nieto: How long will the process take? Will post-conviction relief for those with crimes be honored by Homeland Security for the application for deferred action?

M-A: What else was answered (or not) in terms of qualifying? Minor trips outside the country aren’t a problem, but it looks like the entry-by date is pretty much set in stone. Is it?

Minor trips, as long as they are "brief, casual and innocent," will not disqualify an applicant. But the applicant's age at date of entry is set in stone, and had to occur before the applicant turned 16.

M-A: What about other issues, like the age of applicants now? What clarification has the guidance provided there?

Nieto: The previous mandate of entering before 16 and under 31 as of June 15, 2012 remains unchanged.

M-A: So what now? Should we be expecting any adjustments as this is implemented? And what should people who hope to qualify be doing now?

Nieto: Prospective applicants should start obtaining proof of high school completion, diploma or GED, or honorable discharge from armed forces, as well as proof of residency in the U.S. from June 15, 2007 to date.

Those with criminal convictions should obtain copies of their conviction documents (docket sheets) and seek the advice of an immigration attorney BEFORE considering applying for deferred action.


The complete deferred action guidelines can be found on the USCIS website.
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