1. What is deferred action?
Deferred action is a discretionary determination which defers a removal action. It is temporary protection from deportation. It does not confer any legal status upon an individual and it does not lead to permanent residency or citizenship. It also stops the accrual of unlawful presence in the United States, but does not absolve any previous period of unlawful presence. A grant of deferred action allows an individual to also be eligible for employment authorization.
2. How long will it last?
Grants of deferred action will be given in increments of two years. After the expiration of the two-year period, an individual would need to renew their request for deferred action and employment authorization.
3. What are the requirements?
- You were under the age of 31 as of June 15, 2012;
- Came to the United States before reaching your 16th birthday;
- Have continuously resided in the United States since June 15, 2007, up to the present time;
- Were physically present in the United States on June 15, 2012, and at the time of making your request for consideration of deferred action with USCIS;
- Entered without inspection before June 15, 2012, or your lawful immigration status expired as of June 15, 2012;
- Are currently in school, have graduated or obtained a certificate of completion from high school, have obtained a general education development (GED) certificate, or are honorably discharged veteran of the Coast Guard or Armed Forces of the United States;
- Have not been convicted of a felony offense, a significant misdemeanor offense, three or more other misdemeanor offenses, and do not pose a threat to national security or public safety;
4. How can I apply?
Beginning August 15, 2012, individuals can submit requests for deferred action and employment authorization to the U.S. Citizenship and Immigration Services (USCIS). The required forms are:
- Form I-821D Consideration of Deferred Action for Childhood Arrivals
- Fom I-765 Application for Employment Authorization
- Form I-765WS I-765 Worksheet
An optional Form G-1145 E-Notification of Application/Petition Acceptance may also be filed if you would like to receive e-notification of your application from USCIS.
There is no fee to obtain these forms. Individuals should not be paying preparers or notarios to obtain the forms. The forms are free and accessible on-line.
5. Where do I get the forms?
The forms and instructions are available on the USCIS website at http://www.uscis.gov.
6. What about if I am currently in removal proceedings, or received a final order of removal, or voluntary departure order – can I apply?
Individuals in removal proceedings, those with final removal orders, or voluntary departure orders who meet the eligibility criteria are directed to apply with USCIS.
*If US Immigration and Customs Enforcement (ICE) has already deferred action in your case, you may file Form I-765 and Form I-765WS with USCIS to request employment authorization. You should also submit written proof of deferred action from ICE.
7. Can I apply if I am in immigration detention?
Individuals who believe they are eligible are directed to contact their detention officer or Immigration and Customs Enforcement (ICE) Office of the Public Advocate through the Office’s hotline at 1-888-351-4024 (9am - 5pm Monday - Friday) or by e-mail at [email protected]. Individuals should indicate that they meet the eligibility criteria for deferred action pursuant to Secretary Napolitano’s Memorandum on Exercising Prosecutorial Discretion with Respect to Individuals Who Came to the United States as Children, dated June 15, 2012. These individuals are instructed not to submit requests for deferred action to USCIS.
8. How old do I have to be in order to apply for deferred action?
If you have never been in removal proceedings, or your proceedings were terminated, you must be at least 15 years of age or older at time of filing. If you are currently in removal proceedings, have received a final order of removal, or voluntary departure, and are not in detention, you can request deferred action even if you are under the age of 15.
9. How much will it cost to file for deferred action and employment authorization?
The total amount of fees will be $465 in a check or money order payable to U.S. Department of Homeland Security.
10. What if I cannot afford to pay the fees?
There is a fee exemption available for individuals who can provide documentary evidence in the following limited circumstances:
- You are under 18 years of age, homeless, in foster care, or otherwise lacking any parental or familial support, and your income is less than 150% of the federal poverty level;
- You cannot care for yourself because you suffer from a serious, chronic disability and your income is less than 150% of the federal poverty level;
- You have, at the time of the request, accumulated $25,000 or more in debt in the past 12 months as a result of unreimbursed medical expenses for yourself or an immediate family member, and your income is less than 150% of the federal poverty level.
The link to the 2012 federal poverty level is available here:
11. Will I have to do a background check? If so, what will that mean?
Yes. Background checks involve checking biographic and biometric (fingerprints) information provided by individuals to be checked against the Department of Homeland Security (DHS) and other federal, state, and local databases. You will need to provide your biographical information and also fingerprints so that these background checks can be conducted.
12. What if I have a criminal record?
If you have a criminal record, you must consult an experienced immigration attorney before submitting a deferred action request to USCIS. To be eligible for this relief, you must not have been convicted of a felony offense, a significant misdemeanor offense, or three or more other misdemeanor offenses, or otherwise pose a threat to national security or public safety. If you feel that you might have an issue with any of the above, you must consult with an experienced immigration attorney before submitting a request for deferred action. Obtain any copies of criminal records, court dispositions for any criminal issues for evaluation by an experienced immigration attorney prior to submitting a request for deferred action.
13. What is a felony offense?
A felony is a federal, state, or local criminal offense punishable by imprisonment for a term exceeding one year.
14. What is a significant misdemeanor?
A significant misdemeanor is a misdemeanor for which the maximum term of imprisonment authorized is one year or less, but greater than five days and is either:
a domestic violence offense; sexual abuse or exploitation; burglary; unlawful possession or use of a firearm; drug distribution or trafficking; or driving under the influence OR a crime in which an individual was sentenced to time in custody of more than 90 days. The sentence must be for time served in custody and does not include a suspended sentence.
15. What about misdemeanors?
A misdemeanor is not one of the crimes listed under significant misdemeanor criteria, and the time sentenced in custody is 90 days or less. If you receive three or more misdemeanors you will not be eligible for deferred action. Generally, minor traffic offenses, like driving without a license, will not be considered a misdemeanor for purposes of deferred action. However, an individual’s entire criminal history will be considered when evaluating a request for deferred action.
16. What if I have an expunged or juvenile conviction?
Expunged convictions and juvenile convictions are not automatic bars to receiving deferred action. USCIS will consider the totality of someone’s entire history when making a determination as to whether to grant deferred action.
17. What qualifies as a national security or public safety threat?
If information in your application reveals that you are a public safety or national security threat, you will not be eligible for deferred action. This could include, but is not limited to, gang membership, participation in criminal activities, or activities that threaten the United States.
18. What will happen if my request is denied, will I be placed in removal proceedings?
If you are denied deferred action USCIS has stated they will review your case under its policy guidance for placing cases in removal proceedings. Generally, as long as your case does not involve a criminal offense, fraud, or a threat to national security or public safety, your case will not be referred to ICE for removal.
19. Can I appeal the decision if it is denied?
No. You cannot appeal your decision if USCIS denies your request for deferred action. However, there will be supervisory review of all cases to ensure quality assurance.
20. What evidence will I need to submit with my applications?
You will need to submit verifiable documentation that you meet the eligibility guidelines for deferred action. For a checklist of documents please refer to APALC’s Document Checklist which can be found at http://advancingjustice-la.org/what-we-do/direct-services/immigration-and-citizenship/document-checklist-undocumented-youth. For further information, consult USCIS FAQs for Deferred Action for Childhood Arrivals, which can be found at http://www.uscis.gov/childhoodarrivals.
21. Will DHS use information that I provide for immigration enforcement purposes?
Information provided will not be disclosed to ICE and U.S. Customs and Border Protection (CBP) for the purposes of immigration enforcement proceedings, unless the circumstances of the case fall within specified criteria set forth by USCIS on instituting removal proceedings. Information received will also not be used against undocumented family members and guardians for immigration enforcement.
22. Can I travel outside the United States once I am granted deferred action?
In order to travel, you will need to apply for advance parole by filing Form I-131 (available at http://www.uscis.gov) and paying the required fee, which is $360. You will need to be approved for deferred action before applying for advance parole. Travel will only be authorized for humanitarian purposes, educational purposes, or employment purposes. Cases will be determined on a case-by-case basis. Before applying for advance parole, make sure you consult with an experienced immigration attorney to assess any possible risks of traveling abroad.
23. Can deferred action be taken away? What if there is a change in the Administration?
Deferred action can be terminated at any time or renewed at any time. While this only provides temporary relief to DREAMERS, we know from practice and history that it is difficult to terminate relief once it has been granted. Also, only the legislature can provide a permanent path to residency, citizenship, and comprehensive immigration reform. This is an important first step for a more permanent solution.
24. If this does not lead to residency or citizenship how can this be helpful to me?
Deferred action provides safety from deportation and also the ability to work legally in the United States. For many individuals these are important benefits. While there was a memo on prosecutorial discretion issued by DHS last year, we know that many undocumented youth were still being placed in removal proceedings and some even removed from the United States. This new policy specifically provides protection and relief to undocumented youth.
25. Who can help me with applying for deferred action?
APALC can help you determine if you are qualified for relief. It is important to talk with a licensed, experienced immigration attorney or a BIA Accredited Representative. There are many notarios or preparers who charge high fees and hold themselves out to be immigration experts. There have been many cases of fraud by these notarios/preparers. It is important to be aware of potential immigration scams.
26. How can I help?
If you would like more information on how you can help in this effort, or future efforts to pass the DREAM Act and other legislative actions, please contact APALC at the following:
(888) 349-9695 and at [email protected]
APALC can also be contacted in the following languages:
- Chinese (Mandarin and Cantonese) - 800.520.2356
- Khmer - 800.867.3126
- Korean - 800.867.3640
- Thai - 800.914.9583
- Vietnamese - 800.267.7395