Deferred action is the exercise of prosecutorial discretion for certain law enforcement agencies and governmental entities, including Immigration and Customs Enforcement and United States Citizenship and Immigration Services. There are several reasons why deferred action may be exercised.
Deferred Action Overview
There is not technically a statute that provides for deferred action of immigration cases. However, there is a policy basis for deferred action, based on the lack of resources for the government to pursue removal of every illegal immigrant. Typically, deferred action provides a formal determination of a governmental agency not to pursue removal of an individual who is unlawfully in the United States for a particular period of time.
Reasons for Deferred Action
Deferred Action may be exercised due to humanitarian concerns, such as when foreign students who were impacted by Hurricane Katrina were provided with deferred action or after Haitians came to the United States after a major earthquake in 2010. It also is used for law enforcement purposes. It is considered a convenient tool for the government and is not an immigration benefit or a method of providing status for immigrants.
Benefits of Deferred Action
Individuals who are approved for deferred action can receive work authorization. This allows immigrants to work in the United States legally while the work authorization is valid.
Deferred Action for Childhood Arrivals
After the so-called DREAM Act failed to pass multiple times, the Secretary of Homeland Security announced on June 15, 2012 that certain individuals who came into the United States when they were children and who met other guidelines could request deferred action for childhood arrival. The period of applicability would be for two years and could be renewed. However, President Barack Obama announced on November 20, 2014 that this period would be expanded from two years to three years. Other eligibility guidelines for Deferred Action for Childhood Arrivals are that the applicant was 31 or younger on June 15, 2012, came to the United States before he or she was 16 years old, continuously resided in the United States for five years prior to the 2012 announcement and after, was in the United States on June 15, 2012 and had no other lawful status as of that date. Additionally, the individual must have been in school, graduated from high school or been in a general education development program. Individuals who had been convicted of a felony, had been convicted of a significant misdemeanor or who had three or more misdemeanor convictions are ineligible. There are other rules pertaining to individuals who are part of the armed forces. On November 20, 2014, President Barack Obama announced an executive order that would provide eligibility for even more individuals, such as by removing the age limit announced in 2012, as well as updating the time frame for continuous residence beginning in 2010 instead of 2007.
Deferred Action for Parents of Americans and Lawful Permanent Residents
This new program was also announced by President Barack Obama on November 20, 2014. This program is designed to assist the parents of American citizens and lawful permanent residents who have been in the country since January 1, 2010. This new program would also allow for a three-year period of deferred action, provided that applicants successfully pass required background checks. To be eligible, the individual must have a child who is an American citizen or lawful permanent resident by the date of the announcement. Again, the program does not provide a direct immigration benefit. Each case is determined on a case-by-case basis. It is supported by the belief that these individuals do not represent a high priority for removal. At the time of publication, there was not a formal process to apply for this program and forms had not been drafted for this program. However, USCIS estimated that such a process would be put in place within 180 days of the president’s announcement. However, eligible individuals are encouraged to begin gathering documents that they would likely need to apply, such as documents that demonstrate their identity, their relationship to a permanent resident or American citizen and their continual residence in the country for the time proscribed by the executive order. There was not a deadline that was put in place for the program at the time that the announcement was made.