Dream Act Law provisions made effective by President Obama /
Deferred Action for Childhood Arrival (DACA)
The Obama administration announced on Friday June 15, 2012 that it would no longer seek the removal of many young undocumented immigrants. Instead immigration authorities are allowing such persons to apply for “Deferred Action” from removal, renewable every three (3) years, which will provide for a means to apply for a Work Authorization Document (also known as an EAD card) and a valid Social Security Card.
USCIS began accepting applications for Deferred Action for Childhood Arrivals on August 15, 2012. In practical terms this will pave the way for eligible young immigrants to come out of the shadows and,
- Obtain a valid Social Security number,
- Obtain a valid state driver’s license,
- Work legally and pay income tax, and
- Attend high school and college.
Who will Qualify:
In a memorandum to immigration enforcement officials, Homeland Security Secretary Janet Napolitano wrote that immigrants who were illegally brought to the United States as children "lacked the intent to violate the law," and pose few national security risks.
The memo said the government would offer Deferred Action to immigrants who met 5 criteria:
- Have entered the United States under the age of 16,
- Be currently enrolled in school, have graduated high school (or GED), OR willing and eligible to serve in the military,
- Have been in the United States since June 15, 2007, AND
- Have a minimal criminal record. (No felonies, DUI's, or high-level misdemeanors. Minor traffic and most minor misdemeanor crimes should not cause a problem.)
It is very important to have your case handled by an experienced immigration attorney. Applicants that do not meet these criteria may be placed into removal proceedings and deported from the United States. If you apply for Deferred Action without consulting a lawyer first, damage may be done that cannot be undone.
“Our nation’s immigration laws must be enforced in a firm and sensible manner,” said Napolitano. “But they are not designed to be blindly enforced without consideration given to the individual circumstances of each case. Nor are they designed to remove productive young people to countries where they may not have lived or even speak the language. Discretion, which is used in so many other areas, is especially justified here.” This memorandum gives no substantive right, immigration status or pathway to citizenship. Only the Congress, acting through its legislative authority, can confer these rights.
It is important to understand that this is only a change in existing policy. Relevant federal agencies already possessed these powers, only a willingness to implement them was lacking. The best way to think about this policy shift is a band-aid over a gaping wound, but a band-aid that will in the short term allow many of the most vulnerable and blameless undocumented immigrants live a more normal life until a permanent solution to fix our country’s broken immigration system is implemented.
Additional provisions of the Obama Dream Act Policy Shift:
1. With respect to individuals who are encountered by U.S. Immigration and Customs Enforcement (ICE), U.S. Customs and Border Protection (CBP), or U.S. Citizenship and Immigration Services (USCIS):
- With respect to individuals who meet the above criteria, ICE and CBP should immediately exercise their discretion, on an individual basis, in order to prevent low priority individuals from being placed into removal proceedings or removed from the United States.
- USCIS is instructed to implement this memorandum consistent with its existing guidance regarding the issuance of notices to appear.
2. With respect to individuals who are in removal proceedings but not yet subject to a final order of removal, and who meet the above criteria:
- ICE should exercise prosecutorial discretion, on an individual basis, for individuals who meet the above criteria by deferring action for a period of two years, subject to renewal, in order to prevent low priority individuals from being removed from the United States.
- ICE is instructed to use its Office of the Public Advocate to permit individuals who believe they meet the above criteria to identify themselves through a clear and efficient process.
- ICE is directed to begin implementing this process within 60 days of the date of this memorandum.
- ICE is also instructed to immediately begin the process of deferring action against individuals who meet the above criteria whose cases have already been identified through the ongoing review of pending cases before the Executive Office for Immigration Review.
3. With respect to the individuals who are not currently in removal proceedings and meet the above criteria, and pass a background check:
- USCIS should establish a clear and efficient process for exercising prosecutorial discretion, on an individual basis, by deferring action against individuals who meet the 2 above criteria and are at least 15 years old, for a period oftwo years, subject to renewal, in order to prevent low priority individuals from being placed into removal proceedings or removed from the United States.
- The USCIS process shall also be available to individuals subject to a Final Order of removal regardless of their age.
- USCIS is directed to begin implementing this process within 60 days ofthe date of this memorandum.
For individuals who are granted deferred action by either ICE or USCIS, USCIS shall accept applications to determine whether these individuals qualify for work authorization during this period of deferred action.
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