Beginning this Wednesday, certain undocumented young people who entered the United States as children will be allowed to request “Deferred Action” status and employment authorization from the United States Citizenship & Immigration Service. The process, announced by President Obama just about two months ago, will benefit individuals who might have benefited from the DREAM Act, a bill that has been introduced repeatedly since 2001, but which has never been passed into law.
Deferred Action is not a new status, though it has never been offered to such a large class of individuals. It is essentially an administrative acknowledgement that an individual, though still undocumented, is among the lowest priorities for removal because, with a finite budget appropriated by Congress, the Department of Homeland Security has determined that resources should be focused on others. Individuals who are granted Deferred Action status may also qualify for employment authorization if they can establish an economic need to work.
Under the criteria announced by the Department of Homeland Security on June 15—and further clarified by USCIS on August 3—undocumented individuals will be eligible to request Deferred Action and employment authorization who, as of June 15, 2012:
- Were physically present within the United States
- Had not yet turned 31 years old
- Arrived in the U.S. prior to their 16th birthday
- Had lived in the U.S. for at least five years
- Are enrolled in school, have graduated from high school, have earned a GED, or are an honorably discharged military veteran
- Have not been convicted of certain criminal offense and are not otherwise a threat to national security
I’ve gotten a lot of questions over the past several weeks about this new policy in the past few weeks from potentially-eligible young people as well as from their pastors, teachers, and others who have long been advocating for the DREAM Act. To be clear, this Deferred Action policy is not the DREAM Act, which would offer Lawful Permanent Resident status and a path to citizenship to certain individuals who entered the U.S. as children, graduated from high school or earned a GED, and eventually went on to complete at least two years of college or military service. The DREAM Act, though, would require congressional approval, which Congress has repeatedly denied. Despite lots of anticipation for a new DREAM-Act-like bill that Senator Marco Rubio has said he planned to introduce, as of today there has been no new legislation introduced in the Senate, and such a bill’s chances of passing through the House of Representatives are, according to Speaker John Boehner, “difficult at best.”
Deferred Action, however, can be granted on a discretionary basis by the Department of Homeland Security, without Congress’ approval. By the same token, it could be taken away at any time, begging the question of how the Administration of Mitt Romney would respond if he were to be president six months from now: would he revoke Deferred Action? Would he let it stand, but refuse to renew work authorization documents that, once issued, will expire in two years? Would he use the information that must be provided in order to request Deferred Action status to actually initiate deportation for these young people (and thus essentially prioritizing for deportation one of the most sympathetic groups of undocumented immigrants)? No one knows for sure, and Governor Romney, who has indicated in the past that he would veto the DREAM Act if elected, has refused to answer directly the question of how he will respond to the Deferred Action process, saying only that he will enact a “long-term solution that will replace and supersede the President’s temporary measure.” Whether that “long-term solution” is something resembling the DREAM Act or, as Governor Romney has previously said was his preferred immigration strategy, “self-deportation,” or something in between is unclear. Satirist Jon Stewart compared this proposal to a tattoo acquired by a drunken college student: “you don’t know what it is yet, you don’t know if you like it, but it will be permanent.”
With such uncertainty, it is wise for those interested in submitting a request for Deferred Action to consult with a competent, authorized legal advisor. That’s also wise because, in some cases, individuals may actually be eligible for an immigration benefit better than Deferred Action, for which a competent legal advisor can screen. Having seen many, many cases of immigrants receiving (and often paying incredible amounts of money for) terrible legal advice, I would strongly encourage those who believe they may be eligible to avoid taking advice from anyone who is not authorized to prove legal advice, including “notarios,” travel agents, or even well-meaning but unauthorized and untrained folks at their church, school, or community organization. The best person to talk to for legal advice—who can accurately explain and help to assess the eligibility requirements, the application process, and the potential benefits as well as risks to requesting Deferred Action—is a specialized immigration attorney who is a member of the American Immigration Lawyers Association or an individual at a non-profit organization who is accredited by the Board of Immigration Appeals. BIA-recognized organizations (including most World Relief offices, as well as some of our church partners whom we have helped to train) offer competent legal advice for a fraction of the fees charged by most immigration attorneys in private practice (or, in some cases, for free). (Churches and others eager to help eligible youth should be careful not to try to do so by offering legal advice or filling out forms, because doing so without proper training in the complexities of immigration law can put people at risk; it is also unauthorized practice of law. A better way to help might be to help pay part of the $465 fee required for the Employment Authorization application).
While it is prudent to consult with an authorized legal practitioner, and even though no one can guarantee who will be president in six months and how his Administration will treat these cases, I think that the Deferred Action program is a very positive step. My friend Alberto’s story illustrates why: Alberto came to the U.S. as a small child from Peru, with his parents. Though their temporary visas expired, they stayed in the U.S., becoming undocumented. An excellent student, Alberto earned a privately-funded scholarship to a Christian college, and he graduated in May. He’s now been accepted at a seminary, where he plans to begin studying this fall, seeking to eventually enter full-time Christian ministry. Alberto had long held to his convictions that he should not get a false Social Security card to work; as he prepared to enter seminary, though he felt increasing pressure to do so, so as to be able to work and support himself through seminary. Thanks to the new Deferred Action policy, Alberto should qualify for an Employment Authorization card, with which, for the first time, he will be eligible for a Social Security card and a Driver’s License. He’ll be able to work lawfully throughout his time in seminary, and, after he graduates—presuming that the Department of Homeland Security decides to renew his work authorization card beyond its initial two-year period—he will be able to lawfully accept a job as a pastor.
Deferred Action is no panacea, and it in no way eliminates the urgent need for Congress to pass the DREAM Act and more comprehensive immigration reform. That the timing of the announcement is politically-motivated, I have no doubt (I tend to think that most decisions in Washington, from both parties, are politically-motivated). But I’m also sure that, for Alberto and many others I know, it is tangible hope. And that’s worth celebrating.
Matthew Soerens is the co-author of Welcoming the Stranger: Justice, Compassion & Truth in the Immigration Debate (InterVarsity Press, 2009) and the US Church Training Specialist at World Relief. His blogs appear here on Mondays.
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