'Deferred Action' from Deportation Clarified by ICE

By Roy Maurer Jun 25, 2012
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President Barack Obama issued an executive order June 15, 2012, that has in effect halted the deportation of an estimated 1.4 million young, undocumented immigrants.

Referred to as DREAMers, after the proposed DREAM (Development, Relief and Education for Alien Minors) Act, the imnmigrants would be allowed conditional permanent residency if they arrived in the United States as minors and now live in the U.S.

The presidential order makes those who are eligible able to apply for relief in the form of “deferred action” from deportation and a two-year renewable work authorization.

Consequently, U.S. Immigration and Customs Enforcement (ICE) published a list of frequently asked questions (FAQs) with answers detailing the criteria around the use of deferred action.

Key FAQs include:

Who is eligible to receive deferred action?

To be eligible for deferred action, individuals must:

Have come to the United States under the age of 16 and not be above the age of 30.

Have resided in the United States continuously for at least five years before June 15, 2012, and have been present in the United States as of June 15, 2012.

Be in school, have graduated from high school, have obtained a GED certificate or be honorably discharged veterans of the Armed Forces of the United States.

Have not been convicted of a felony offense, a significant misdemeanor offense or multiple misdemeanor offenses, or otherwise pose a threat to national security or public safety.

Does deferred action provide individuals with a path to citizenship or permanent legal status?

No. A grant of deferred action is a form of prosecutorial discretion that does not confer a path to citizenship or lawful permanent resident status.

Are individuals who receive deferred action pursuant to the new directive eligible for employment authorization?

Yes. Pursuant to existing regulations, individuals who receive deferred action may apply for and may obtain employment authorization from U.S. Citizenship and Immigration Services (USCIS)—provided they can demonstrate an economic necessity for their employment.

If an individual’s period of deferred action is extended, will individuals need to reapply for an extension of their employment authorization?

Yes. If an individual applies for and receives an extension of the period for which he or she was granted deferred action, he or she must request an extension of his or her employment authorization.

Does this policy apply to those who are subject to a final order of removal?

Yes. An individual subject to a final order of removal who can demonstrate that he or she meets the eligibility criteria can request a review of his or her case and receive deferred action for two years, subject to renewal. Individuals who believe that they can demonstrate that they satisfy the eligibility criteria and are about to ​be deported should immediately contact the Law Enforcement Support Center’s hotline at 1-855-448-6903 (staffed 24 hours a day, seven days a week) or the ICE Office of the Public Advocate at 1-888-351-4024 (staffed 9 a.m.-5 p.m., Monday-Friday) or by e-mail at EROPublicAdvocate@ice.dhs.gov.

Will individuals be subject to background checks before they can receive an exercise of deferred action?

Yes. All individuals will undergo biographic and biometric background checks prior to receiving an exercise of deferred action. Individuals who have been convicted of any felony, a significant misdemeanor offense, three or more misdemeanor offenses not occurring on the same date and not arising out of the same act, omission, or scheme of misconduct, or who otherwise pose a threat to national security or public safety are not eligible to be considered for deferred action under the new process. Background checks involve checking biographic and biometric information provided by the individuals against a variety of databases maintained by the Department of Homeland Security (DHS) and other federal government agencies.

Documentation sufficient for an individual to demonstrate that he or she came to the United States before the age of 16 includes, but is not limited to, financial records, medical records, school records, employment records and military records.

Documentation sufficient for an individual to demonstrate that he or she has resided in the United States for at least five years immediately before June 15, 2012, includes, but is not limited to, financial records, medical records, school records, employment records and military records.

Documentation sufficient for an individual to demonstrate that he or she is in school, has graduated from high school or has obtained a GED certificate includes, but is not limited to, diplomas, GED certificates, report cards and school transcripts.

Documentation sufficient for an individual to demonstrate that he or she is an honorably discharged veteran of the Armed Forces of the United States includes, but is not limited to, report-of-separation forms, military personnel records and military health records.

USCIS and ICE expect to begin implementation of the application processes by mid-August 2012. Individuals seeking more information on the new policy should visit the DHS website or those of its agencies, USCIS and ICE.

Individuals can call the USCIS hotline at 1-800-375-5283 or ICE’s hotline at 1-888-351-4024 during business hours with questions or to request more information on the process.

Roy Maurer is a staff writer for SHRM.

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