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Article of Interest

New Presidential Policy Affords Work Permits to Some Undocumented Immigrants
By Alfonso Cabañas, Cabañas Law Firm, PLLC

On June 15, President Barack Obama announced that undocumented immigrants who came to the United States as children will be able to remain in the country and obtain work permits. The President’s policy does not grant lawful status to these individuals but rather defers their removal for two years and makes this status subject to renewal. Not every undocumented immigrant will qualify; only those individuals who meet the criteria set forth by the President’s policy will qualify for this deferred action. Immigration lawyers, and others whose practices are affected by immigrations law, should know the basics of this policy and how it affects current and future clients.

Who qualifies to receive deferred action?
Undocumented immigrants qualify for deferred action if they:
     1. Entered the United States before they turned sixteen;
     2. Are present in and have continuously resided in the United States for at least five years
         preceding June 15, 2012;
     3. Are enrolled in school, have graduated from high school, have obtained a general education
         development certificate, or have been honorably discharged from the Coast Guard or Armed
         Forces;
     4. Have not been convicted of a felony, a significant misdemeanor, or multiple misdemeanors,
         and they do not otherwise pose a threat to national security or public safety; and
     5. Are not more than thirty years old.

What is deferred action?
Deferred action is a discretionary deferral of a removal action against an undocumented individual. Deferred action does not absolve the individual of previous or subsequent periods of unlawful presence. The grant of deferred action does, however, allow the individual to obtain a work permit that allows lawful employment during the deferral period.  Deferred-action status lasts for two years and is subject to renewal.

How will the new directive be implemented?
While the directive takes effect immediately, U.S. Citizenship and Immigration Services (USCIS) and Immigration and Customs Enforcement (ICE) will implement the application process by August 14. Individuals who are subject to a final order of removal or who are not in removal proceedings will need to submit a request, along with supporting evidence, to USCIS for review of their case.

Does the process result in permanent lawful status for the applicant?
Deferred action does not grant lawful permanent status or a pathway to obtaining lawful status.

Can individuals appeal a denial by USCIS and ICE of their requests for a deferral action?
No, there is no appeal from a denial of a request for deferral action.

If the request for deferral action is denied, will the applicant be placed in removal proceedings?
The applicants whose requests are denied will be placed in removal proceedings through the USCIS’s governing guidelines regarding Notices to Appear.

Please remember that this is a brief summary of the directive. Additional guidelines and procedures will continue to be implemented in the coming weeks.