Visa Lawyer Blog
Since Deferred Action was announced, many many questions are still unanswered with respect to this program. In this post we have provided some of the recent few updates.
Temporary deferral of removal only means that DHS will not initiate or continue removal proceedings against eligible applicants during the relevant relief period. The applicant will similarly stop accruing “unlawful presence” which would otherwise bar eligibility for future relief. Deferred action does not confer lawful status or guarantee a path to citizenship; it does not excuse unlawful presence (UP) accrued before or after the relief goes into effect.
This means you continue to accrue UP until your case is approved, denied, or after the period of granted relief has passed without being renewed. However, deferred action does provide employment authorization. This allows you to apply for permission to work in the U.S. by showing “economic need.” DHS retains the discretion to terminate or renew the relief at any time.
– The most important point is regarding the manner and status at entry. We don’t want to use “EWI” because some of the Applicants may have been inspected but waived through the checkpoint, which makes them eligible for adjustment later on since it is a procedurally correct entry.
There are two views on how to address the question that asks about “Status at entry” on I-821D:
Under part 7, they explain how the applicant entered: “was waived through…” or “No lawful status” for this question.
As to the question re “Manner of Entry” on I-765: suggested “without visa at border checkpoint”; or “waived through in the situation when the applicant was acknowledged by the immigration but they let him go (if the applicant was in the car with parents/other people, but CBP only asked the parents the questions, acknowledged the applicant’s presence, but let him go).
– Another point regarding Social Security Numbers. Applicants should not put anything for SSN if the person used a not valid SSN. Similarly, if employment records are submitted, we should avoid submitting anything that would implicate that the individual used the incorrect SSN, pretending to be a U.S. citizen, etc. So, point is that paystubs should never be submitted since the always include SSN.
– Addressing two last names of Mexican nationals. If some documentation, especially school documentation, uses only partial version of the person’s name (e.g. one last name) and differs from BC or passport, then applicant get a letter from the school district saying that it is the same person as on the BC/passport.
For example, the School District in San Diego is issuing such letters to all DACA applicants upon request. Only in North county there is no procedure yet for issuance such letters, but students can print out a similar statement online.
– In order to prove presence on June 15, it is recommended submitting documents for the month of June
– In order to prove continuous residence, recommend submitting docs for each quarter.
– Any immigration violations, fraud, false claims to U.S. citizenship could negatively affect future eligibility for other immigration benefits. So, be very careful with the documents submited since this is going to be the A file for the individual.
It is still unclear how the immigration is going to treat unwlaful re-entry into the U.S. after a previous deportation or any other serious violations. There is a concern that where there is a criminal penalty for the immigration offense (false claim to U.S. citizenship, use of fake SSN or re-entry after deportation), then they are saying that this info can be used for law enforcement purposes as provided in FAQs of USCIS.
– It is recommend screening for additional forms of relief since the kids might not know what’s available to them: Special Immigrant Juvenile Status, U, T, VAWA, family-based.
– Prioritizing DACA applications for persons turning 18 because we can prevent unlawful presence. Very Important.
– Juvenile delinquency records may be governed by state confidentiality provisions, so if we ever come across, should double check with the jurisdiction before giving to USCIS.
– for any criminal issues, It is recommend doing:
FBI search, and
State rap sheet, and
complete certified copy of the record from the court where conviction took place.
FBI search will also reflect any immigration stops, including encounters at the port of entry.
Visit our Deferred Action Resource Center for more information