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Deferred Action Lawyer: Further Updates on Deferred Action (DACA) including Brief casual absences from the U.S.

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:
1) Affirmative Application Process through USCIS

Applicants who have never been in removal proceedings, who are currently in removal proceeding, or who have a final removal order or voluntary departure order will submit their DACA applications to USCIS, and not to Immigration and Customs Enforcement (ICE) as was anticipated before.

Only individuals who are currently in immigration detention will need to submit their requests to ICE.

2) Confidentiality of information released on DACA application

All information received through DACA application process will be protected from disclosure to ICE or Customs and Border Protection (CBP) for purposes of removal proceedings unless the applicant meets the criteria of USCIS’s guidelines for issuance of Notices to Appear. Similarly, information related to applicants’ family members will be kept confidential and will not be used for immigration enforcement purposes unless the applicant meets certain USCIS criteria for referral to ICE.

The information may be shared with national security and law enforcement agencies, including ICE and CBP, for purposes other than removal, to identify or prevent fraudulent claims, for national security purposes, or for the investigation or prosecution of a criminal offence.

3) Brief casual absences from the U.S. before August 15, 2012

Brief, casual, and innocent absences from the United States before August 15, 2012 will not interrupt your continuous residence if:
1. The absence was short and reasonably calculated to accomplish the purpose for the absence;
2. The absence was not because of an order of exclusion, deportation, or removal;
3. The absence was not because of an order of voluntary departure, or an administrative grant of voluntary departure before you were placed in exclusion, deportation, or removal proceedings; and
4. The purpose of the absence and/or your actions while outside the United States were not contrary to law.

4) Advance Parole and Travel Abroad after August 15, 2012

Travel abroad may be permitted for specific purposes, such as humanitarian purposes, employment or educational purposes. However, applicant who has been granted deferred action relief will need to submit Form I-131, pay the application fee, and have the application approved before he/she can travel abroad. USCIS will determine whether your purpose for international travel is justifiable in order to issue advance parole.

NOTE: You have to have your DACA request approved before you apply for Advance Parole.

NOTE: If you leave the U.S. without Advance Parole after August 15, 2012, you will not be considered for deferred action.

5) Entry Without Inspection or Expiration of Lawful Status

USCIS has also clarified that DACA will be available for those individuals who entered without inspection before June 15, 2012 as well as to those applicants whose lawful immigration status expired as of June 15, 2012, as long as they are otherwise eligible.

6) Affidavits as Supporting Documents

Affidavits are not generally sufficient on their own to demonstrate that you meet DACA guidelines. However, affidavits can be considered to support the application if other documentation available to you is insufficient or lacking in the following circumstances:
• A gap in the documentation demonstrating that you meet the five year continuous residence requirement; and
• A shortcoming in documentation with respect to the brief, casual and innocent departures during the five years of required continuous presence.

If you submit affidavits related to the above criteria, you must submit two or more affidavits, sworn to or affirmed by people other than yourself, who have direct personal knowledge of the events and circumstances.

USCIS will not accept affidavits as proof of satisfying other criteria to qualify for DACA.

7) Accrual of Unlawful Presence

You will continue to accrue unlawful presence while the request for consideration of deferred action for childhood arrivals is pending, unless you are under 18 years old at the time of the request. If you are under 18 years old at the time you submit your request but turn 18 while your request is pending with USCIS, you will not accrue unlawful presence while the request pending. If your case is deferred, you will not accrue unlawful presence during the period of deferred action. Having action deferred on your case will not excuse previously accrued unlawful presence.

8) No Appeal Rights

You cannot file a motion to reopen or reconsider, and cannot appeal the decision if USCIS denies your request for consideration of deferred action for childhood arrivals. USCIS will not review its discretionary determinations.

We will provide more updates on DACA once they become available. Email us if you are ready to start the process and be evaluated.

Here is a link to the USCIS Deferred Action page