Immigration Officials are advising educators that school records will be among the key documents that young undocumented immigrants must submit in their requests for deferred action, the new immigration policy that allows individuals who arrived in the United States as children to seek relief from deportation and gain work permits.
Applicants have to demonstrate, among other criteria, that they are currently enrolled in school, have graduated from high school, or have obtained a GED. But school records will also help many potential beneficiaries prove another key qualification: continuous presence in the U.S. for the last five years. A high school transcript documenting four years of schooling would be “fantastic evidence in a single document.”
Educators wanted to know how “official” school records must be. The answer, said DHS officials, is that there is no fixed requirement for what form the school records must take; what matters is content. The key pieces of information on those documents are the student’s name, the time period that the document covers, and evidence of coursework that was completed. DHS officials said that the U.S. Citizenship and Immigration Services agency—which is handling the reviews of all deferred action requests—is prepared to accept any documents that schools provide to applicants.
One school official who was concerned about students meeting the requirements asked how applicants could prove they had been present in the U.S. during summer months, or school breaks, particularly in cases where they would be relying on education documents to demonstrate continuous presence for five years. DHS officials said there was no requirement that applicants must prove that any given day or summer must be accounted for and that the agency would bear in mind that schools do have breaks.
Another important question from educators was whether students whose deferred action requests are approved will be eligible to receive federal financial aid, such as Pell Grants, or to participate in federal work-study programs. The answer was that no such financial aid will be available to those who are granted deferred action.
Deferred action does only two things, DHS officials said: It removes the potential for deportation for at least two years, and opens up the possibility for obtaining work authorization. There are no other benefits.
In a recent letter from the Department of Health and Human Services (HHS) concerning individuals with Deferred Action for Childhood Arrivals, the HHS issued a statement concerning whether these individuals qualify for Medicaid. The letter directed to State Health Official and the Medicaid Director was intended to inform them regarding the implications for Medicaid and the Children’s Health Insurance Program (CHIP) and the U.S. Department of Homeland Security’s (DHS) announcement on June 15, 2012, wherein they state that it will consider providing temporary relief from removal by exercising deferred action on a case-by-case basis with respect to certain individuals under age 31 as of June 15, 2012 who meet certain guidelines, including that they came to the United States as children and do not present a risk to national security or public safety. This process is referred to by DHS as Deferred Action for Childhood Arrivals (DACA). DHS has explained that the DACA process is designed to ensure that governmental resources for the removal of individuals are focused on high priority cases, including those involving a danger to national security or a risk to public safety, and not on low priority cases. DHS began accepting requests for consideration of deferred action on August 15, 2012.
Section 214 of the Children’s Health Insurance Program Reauthorization Act of 2009 (CHIPRA) gave states the option to provide Medicaid and CHIP eligibility to children and/or pregnant women who are “lawfully residing” in the United States and otherwise eligible for Medicaid or CHIP. The Center for Medicare and Medicaid services (CMS) provided guidance on the definition of “lawfully residing” in a July 1, 2010 State Health Official Letter. Because the reasons that DHS offered for adopting the DACA process do not pertain to eligibility for Medicaid or CHIP, HHS has determined that these benefits should not be extended as a result of DHS deferring action under DACA. For this reason, individuals with deferred action under the DACA process shall not be eligible for Medicaid and CHIP under the CHIPRA state option with respect to any of the categories (1)-(9) set forth in the July 1, 2010 letter.
While many Republicans have argued that the Deferred Action would grant these individuals with more public benefits, the letter from HHS clearly demonstrates that such individuals will not be eligible for Medicaid benefits. This means that U.S. taxpayers are not going to be paying into the Medicare/Medicaid system thinking that those services are going to individuals who are not here legally. While health care should always be provided to children who truly need it in order to stay healthy, this letter is in line with the position of the Obama Administration that this relief is for those low risk offenders who deserve a reprieve while Congress figures out what to do regarding all of these young individuals who were brought to the U.S. as children. In the meantime, it is important that those who are seeking Deferred Action understand that the benefits of this action are limited to what DHS has granted during this process at this time.
Several officers from the Immigration and Customs Enforcement (ICE) branch of the Department of Homeland Security (DHS) have filed an injunction in federal court against Secretary Nepolitano and DHS. The plaintiffs are ICE law enforcement officers who believe that by following the Directive issued regarding the Deferred Action that they violate federal law and will be harmed in their positions as ICE law enforcement officers. The officers filed for an injunction against the implementation of the Deferred Action because they believe it is unconstitutional.
The actions raised by the ICE officers in their complaint include: The Directive expressly violates federal statutes requiring the initiation of removals, it violates federal law by conferring a non-statutory form of benefit, deferred action, to more than 1.7 million aliens, rather than a form of relief or benefit that federal law permits on such a large scale, it violates federal law by conferring the legal benefit of employment authorization without any statutory basis and under the false pretense of “Prosecutorial Discretion”, it violates the Constitutional allocation of legislative power to Congress, it violates the Article II, Section 3, Constitutional obligation of the Executive to take care that the laws are faithfully executed, and that it violates the Administrative Procedure Act through conferral of a benefit without regulatory implementation.
While all of these actions raise questions of Constitutional authority and federal power, it will be interesting to see how the DHS responds and whether an injunction will be implemented. If so, it will be a major setback for the Obama administration in taking a stand and doing something where Congress has failed to act. Many DREAMers will now have to wait to see how this plays out and whether they may still gain some relief that was promised to them.
We are very happy to announce that today USCIS has posted Deferred Action Application Forms along with the instructions and further guidelines on Deferred Action for Childhood Arrivals (DACA). Now eligible individuals may apply for DACA and Employment Authorization by completing all the forms and submitting them along with supporting documentation to a USCIS Lockbox facility.
Filing Process:
Three forms will need to be submitted together to USCIS accompanied by a fee of $465:
Last week the Director of the USCIS announced that the USCIS will start accepting applications for Deferred Action and Employment Authorization from August 15.
Our office Lawyers were on a telephone conference with the USCIS last week, during which the process, requirements, fees and other important issues were clarified. This morning the USCIS release the following chart that outlines the process in a nutshell.
Remember there are no Appeals or Motions to Re Open in this process. If you make a mistake, you are done. It is important to do the research, obtain any records needed and consult an experienced lawyer before filing.
AILA has provided this 8 point summary following DHS’ Announcement on Deferred Action:
1. In a change from the prior announcement, people currently in removal proceedings will use the USCIS process when it is implemented on August 15, 2012, rather than go through ICE. Only individuals in detention will go through ICE to make a deferred action request.
2. Information provided as part of the deferred action request process is protected from disclosure to ICE or CBP for purposes of removal proceedings unless the requestor meets the criteria of USCIS’ November 2011 NTA memo.
On August 3, 2012, USCIS held a public engagement to discuss further updates on DACA and implementation process. While application process is not yet in effect, USCIS will start accepting applications on August 15, 2012. Interestingly, USCIS has not yet posted the actual form that will be used to apply for DACA. USCIS pointed out that the applicable form and instructions will be made available on August 15, 2012.
Deferred Action Requests will be mailed at the same time with Form I-765, Employment Authorization Application and with a fee of $465. In limited circumstances, you can qualify for a fee exemption.
USCIS has clarified the following important points concerning DACA process:
Today, in Washington, the Department of Homeland Security provided additional information on the deferred action for childhood arrivals process during a national media call in preparation for the August 15 implementation date.
Back on June 15, Secretary of Homeland Security Janet Napolitano announced that certain young people who came to the United States as children and meet other key guidelines may be eligible, on a case-by-case basis, to receive deferred action. U.S. Citizenship and Immigration Services (USCIS) is finalizing a process by which potentially eligible individuals may request consideration of deferred action for childhood arrivals.
USCIS expects to make all forms, instructions, and additional information relevant to the deferred action for childhood arrivals process available on August 15, 2012. USCIS will then immediately begin accepting requests for consideration of deferred action for childhood arrivals.
A great Analysis by the Immigration Policy Center released. This analysis breaks down the population potentially eligible for deferred action by nationality and age at the national and state level, as well as the congressional district level.
The deferred action initiative, announced by Homeland Security Secretary Janet Napolitano on June 15, offers a two-year, renewable reprieve from deportation to unauthorized immigrants who are under the age of 31; entered the United States before age 16; have lived continuously in the country for at least five years; have not been convicted of a felony, a “significant” misdemeanor, or three other misdemeanors; and are currently in school, graduated from high school, earned a GED, or served in the military.
Immigrants who meet these criteria are commonly referred to as “DREAMers” because they comprise most (though not all) of the individuals who meet the general requirements of the Development, Relief, and Education for Alien Minors (DREAM) Act.
Yesterday, July 24, 2012, USCIS San Diego Field Office held a meeting with attorneys, local community based organizations, local governmental organizations and other interested agencies to address the implementation of Deferred Action. Paul Pierre, District Director of San Diego District Office, ICE and CBP representatives were present at the meeting. Attorney Ekaterina Powell from our office was also present at the meeting and her summary is provided below.
During the meeting, DHS provided updates on the implementation of Deferred Action, which is now referred to as DACA (Deferred Action for Childhood Arrivals).
DHS emphasized that DACA is discretionary DHS decision not to pursue enforcement against a person for a specific period. A grant of deferred action does not confer lawful immigration status or alter an individual’s existing immigration status. DACA is not the Dream Act, and the use of deferred action provides no pathway to citizenship or permanent residency. Only the Congress may confer these rights.
DHS has announced that it will likely issue guidance on the DACA application process on August 1, 2012 and will start accepting petitions August 15, 2012. Until that time, individuals who want to apply for DACA should gather the required documentation to demonstrate their eligibility.
What Documents may be required?
Documentation of presence and continuous residence may include, but is not limited to, financial records, medical records, school records, employment records, and military records. It is unclear what level of documentation will be required. It is also unclear whether in absence of required documentation USCIS will accept alternative forms of documentation, such as affidavits from individuals who could attest to physical presence or continuous presence requirements. DHS should issue additional guidance about acceptable documentation in the coming weeks.
While DHS continues its efforts to increase staffing of the Service Centers to accommodate DACA filings, it is difficult at this point to predict processing times of the requests. DHS has stated that processing times will be determined once the application process begins depending on the number of applicants. DHS stated that it is likely that the process will take 6-12 months.
While it is still unclear whether there will be a separate fee for DACA request, DHS has announced that it will not exempt DACA applicants from Work Authorization Application fee and biometrics fee, which amount to $465 per applicant.
After an application is filed, DHS will capture biometrics of DACA applicant. If the applicant does not provide the required documentation to demonstrate eligibility, USCIS will use its established process of issuing Requests for Evidence. DHS has informed the public that certain applicants selected randomly as well as applicants meeting certain fraud profile or criminal profile will be referred to a local CIS office for an interview.
Although the meeting with DHS has clarified some of the important concerns of the public, it left unanswered many important questions regarding the implementation of DACA.
Specifically, it is still unclear whether individuals granted deferred action will be able to travel abroad. Even if overseas travel is permitted, it may not be in the best interests of the DACA applicants. Although unlawful presence will not accrue during any deferred action period, prior periods of unlawful presence may render individuals who leave the Untied States inadmissible for 3 or 10 years under existing law. Thus, it is critical for DACA applicants to first consult an immigration attorney before leaving the U.S. even if travel is permitted.
Major Concerns
Another issue that keeps many individuals from considering DACA is fear for themselves, if they are denied deferred action, and fear for their family members. It is not clear at this point whether the information regarding legal status of applicants’ parents will be taken and whether this information will be shared with Immigration and Customs Enforcement. Immigration Advocacy groups are currently in the process of discussing confidentiality concerns with DHS and advocating for guidance prohibiting information provided from being used to initiate or continue to pursue removal proceedings.
Before DHS issues guidance on the application process, individuals who would like to apply for Deferred Action should gather as much documentation as possible to demonstrate eligibility.
If you believe that you meet the eligibility provisions of DACA, feel free to contact our office for a consultation and preliminary review of your records. We are now forming an interest list.
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