This post, as is true in general of posts on this blog and other law related blogs, are informational only and not intended as legal advice. Individuals persuing any immigration benefit, including the one discussed below are advised to consult individually with a qualified immigration attorney.
Yesterday, the Department of Homeland Security's USCIS released its new Form I-821D application for "Consideration of Deferred Action for Childhood Arrivals" and related instructions. The agency will begin its acceptance and processing of these applications today.
This is a landmark event for certain young people who were brought to the United States as undocumented aliens, or who overstayed lawful periods of presence in the United States. If you have been following this blog you may have read previous prosts with regard to this new process and some discussion as to what the requirements of said process might be. Those requirements are now set forth in I-821D's instructions as follows:
An individual may be considered for deferred action for childhood arrivals if he or she:
1. Was under the age of 31 as of June 15, 2012 (this is a change from the originally contemplated requirement that the the alien should not be above the age of 30);
2. Came to the United States before reaching his or her 16th birthday;
3. Has continuously resided in the United States since June 15, 2007, up to the present time;
4. Was present in the United States on June 15, 2012, and at the time of making his or her request for consideration of deferred action with USCIS;
5. Entered without inspection before June 15, 2012, or his or her lawful immigration status expired as of June 15, 2012;
6. Is currently in school, has graduated or obtained a certificate of completion from high school, has obtained a general education development certificate, or is an honorably discharged veteran of the Coast Guard or Armed Forces of the United States; and
7. Has not been convicted of a felony, significant misdemeanor, three or more other misdemeanors, and does not otherwise pose a threat to national security or public safety.
The instructions go on to present slightly varying requirements for "Childhood Arrivals Who Have Never Been in Removal Proceedings," "Childhood Arrivals Whose Removal Proceedings Were Terminated," and "Childhood Arrivals In Removal Proceedings, With a Final Order, or With Voluntary Departure." For the first two of these categories, the alien must be 15 years or older at the time of filing and meet the 7 guidelines listed above to be considered for this benefit. With respect to the last category, it appears that providing all of the 7 criteria are met, the alien may apply for the benefit even if he or she is under the age of 15.
Additionally, the benefit is not indefinite and at this juncture is only intended to last two years. Further, it should be clear that this benefit does not confer "immigration status" on the alien, but merely places the alien in a class of aliens for whom deportation is deferred, and who therefore are allowed lawful employment in the United States. Acquiring status for an undocumented or out of status alien is an entirely complex and challenging endevour, requiring careful consultation with an immigration attorney.
The I-821D is filed in conjunction with the I-765 application for employment authorization which requires a filing fee of $465.00 (including biometrics processing). There is no separate filing fee for the I-821D itself.
The burden of proof in these matters of course, are on the alien, and thus, the alien is expected to prove each element or requirement with documentation (evidence), and should fully understand the legal and documentary requirements before filing. Aliens applying for this benefit should also remember that they will be submitting to biometrics processing to verify their identity and the existence of any criminal background, among other things. Thus, applicants with criminal arrest and/or conviction histories must take great care to ensure that a) any criminal conviction does not render them ineligible for the benefit, and b) that such criminal conviction background might not trigger removal proceedings against them if discovered by USCIS.
Aliens should also be reminded that non-lawyers are generally not permitted to give legal advice, and may only fill out forms. Hence, to the extent an alien pursuing this benefit wishes to be advised as to the process in general and/or any risks involved in applying for said benefit, only lawyers (and a limited number of non-lawyers, under the supervision of lawyers and certified to provide assistance by the government) may provide such counsel. It would indeed be a wise decision for the alien to be represented by a qualified immigration lawyer in such an important and life-changing process.
We look forward to consulting with and assisting any prospective candidate for this new and significant benefit.
By: Duane M. Hamilton, Esq.
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