By Gordie Rosoklija, Esq.
On June 15, 2012, the Department of Homeland Security announced a deferred action process that is expected to impact more than one million foreign nationals presently residing in the United States. Through a memorandum titled “Exercising Prosecutorial Discretion with Respect to Individuals Who Came to the United States as Children, Secretary of Homeland Security Janet Napolitano established the following eligibility criteria for the deferred action process: The applicant must (1) Have come to the United States under the age of sixteen; (2) Have continuously resided in the United States for at least five years preceding June 15, 2012 and be present in the United States on June 15, 2012; (3) Currently be in school, have graduated from high school, have obtained a general education development certificate, or are honorably discharged veterans of the Coast Guard or Armed Forces of the United States; (4) Have not been convicted of a felony offense, a significant misdemeanor offense, multiple misdemeanor offenses, or otherwise pose a threat to national security or public safety; (5) Not be above the age of thirty. Applicants are also required to complete a background check as part of the process.
Applicants who satisfy the above criteria will be eligible to receive deferred action for a period of two years, subject to future renewal. They would also be permitted to apply for work authorization through a process that will be announced in the near future. The deferred action process does not grant a pathway toward citizenship. Rather, it effectively serves as a gap measure giving applicants an opportunity to remain in the U.S. and apply for work authorization for the period of deferred action. It provides more time for Congress to reach a consensus on the DREAM Act and other pieces of comprehensive immigration reform.
The deferred action process is a major step in the right direction for immigration advocates throughout America. Yes, it does not confer citizenship or permanent residency, but the directive makes it legally permissible for applicants to continue to live, attend school, and work in the U.S. Preliminary estimates indicate that as many as one million foreign nationals presently residing in the U.S. could be eligible for deferred action. Many of these individuals have resided in the U.S. for over a decade and have had extremely limited contact with their native countries. They have attended America’s schools and become integrated into America’s society. In Plyler v. Doe, the Supreme Court held that undocumented school-age children are entitled to a free primary and secondary school public education, meaning America has invested tremendous resources in educating and training many of the young people who will benefit from the deferred action process.
As stories continue to emerge about young people who are committed to contributing to America’s future, but simply cannot do so because of their legal status, the deferred action process provides a path forward. It gives more immigrants an opportunity to accomplish the America dream “ it builds on the idea that here in America you can make it if you try.
VISANOW will continue to provide novel analysis as further information about the application process becomes available.