Deferred Action for Childhood Arrivals grants protection against deportation and a work permit for two years.
You may request consideration of deferred action for childhood arrivals if you:
1.Were under the age of 31 as of June 15, 2012
2. Came to the United States before reaching your 16th birthday
3. Have continuously resided in the United States since June 15, 2007, up to the present time
4.Were physically present in the United States on June 15, 2012, and at the time of making your request for consideration of deferred action with USCIS
5.Entered without inspection before June 15, 2012, or your lawful immigration status expired as of June 15, 2012
6.Are currently in school, have graduated or obtained a certificate of completion from high school, have obtained a general education development (GED) certificate, or are an honorably discharged veteran of the Coast Guard or Armed Forces of the United States; and Have not been convicted of a felony, significant misdemeanor, three or more other misdemeanors, and do not otherwise pose a threat to national security or public safety.
Yes, even if a family petition is pending and you area awaiting your priority date, you may qualify to apply for Deferred Action if you meet the requirements because it could serve as a means of protection against deportation and it will allow you to work in the U.S. once you are granted a work permit.
As long as you were under 31 years of age on June 15, 2012 (date announced by Obama administration) you qualify.
[accordion title=”Why type of evidence can I file to prove that I meet the necessary requirements?”]
Many students don’t have the necessary evidence to prove that certain requirements are met. For example the continuous presence requirement is one that is hard to prove for many. The Director of USCIS, Alejandro Mayorkas, indicated that you can submit circumstantial evidence that may prove that the applicant meets certain requirements. For example, to prove continuous presence and applicant may provide the following evidence: receipts from visits to the doctor, receipts from purchases or proof of letters or bills in the mail that have been received over the years.
It is important to register all evidence with your application because if the application is denied there will not be an opportunity to appeal or register a motion to reopen.
Alejandro Mayorkas, the Director of USCIS, stated that they will be requiring that an applicant be currently enrolled in school, meaning that the applicant must be enrolled in a program to obtain a GED or high school diploma. If you have not completed high school this is the moment to enroll in a program to obtain your GED certificate. Remember that USCIS will be analyzing applications on a case-by-case basis and it is important to register all evidence necessary from the beginning because you will not be able to appeal the decision if your application is denied.
1. Read every form carefully: You will need to file an I-821D, I-765 – for work authorization, I765WS – to prove the economic reasons that you need to work in the U.S.
2. All documents registered in another language must be translated to English and certified by translator.
3. Make your application easy to understand. Prepare a table of contents that clearly explains the evidence that you are registering and the requirements this evidence is meeting. A well organized application will be easy to review for the immigration officer processing your application.
4. Don’t answer any questions on your application that you don’t understand. Seek legal advice from an attorney or non-profit organization with volunteer attorneys who are reputable in your area. Do not lie on your application because you could risk your application being denied or you could risk being referred for deportation proceedings.
5. Don’t rush your application. It is important to take your time in organizing and collecting all evidence necessary for your application. Before filing your application with USCIS be sure to make a copy of each document you will be submitting and be sure to send your application via certified mail.
If your case is denied you will not have the opportunity to appeal and for that reason it is important to take your time to register all necessary evidence in a way that will be easy to understand for the officer reviewing your case.
Applicants who are in the U.S. without an immigration status begin to accrue unlawful presence at the age of 18. There is a bar for every person who lives in the U.S. without an immigration status. Upon living in the U.S. for 180 days without an immigration status a 3 year bar is obtained upon leaving the country.
Any person living in the U.S. for a year or more will obtain a 10 year bar upon leaving the country. Applicants who apply for Deferred Action prior to turning 18 years will not accrue unlawful presence while their applications are pending and an approved application will also prevent them from accumulating unlawful presence.
Any applicant that is over 18 years of age and has lived in the country without an immigration status for 180 days or 1 year will receive a 3 or 10 year bar upon leaving the country. Deferred Action will not remove a bar for unlawful presence that was accrued prior to submitting the application for Deferred Action and applicants will continue accruing unlawful presence until they receive a final decision about their case from USCIS.
Q: Many people work with a number that is not theirs. Should they include it in the Deferred Action application? (Question 9, I-765) (Question 2, I-821D)
A: If the Social Security Administration has not issued you a social security number then you should leave the space blank.
Q: What should I put under the section that requires an alien registration number? (Question 10, I-765)
A: You should leave this space blank if you don’t have a case number with USCIS.
Q: What should I list as my last date of entry? (Question 12, I-765)
A: If you left the country at any point after your first date of entry into the U.S. you should consider consulting with an an attorney about your case.
Q: What is the code that I need to include in my application?
(Question 16, I-765)
A: The code is C33.
Q: What financial information should I include in form I-765WS? (Part 2, I-765WS)
A: You must include your income. If your taxes indicate another amount than that of your own income (i.e. a spouse’s income) you can offer an explanation under “additional information” on Part 3 of the form.
Q: What type of explanation must I include to prove I have an economic need to work in the U.S.? (Part 3, I-765WS)
A: Applicants can clearly explain under “additional information” on Part 3 of the form that they have the intention of going to school or that they have the intention to work in an effort to help support themselves and their family.
Q: What last name should I include in my Deferred Action application? (Question 1, I-821D)
A: You must include your name exactly as it appears on your birth certificate.
Q: Do I have to include my parent’s names in the application? (Question 2, I-821D)
A: It is not necessary. This space is only for those that want their information to be sent to another address in the care of another individual, organization or attorney.
Q: What should I include as my country of residence? (Question 9, I-821D)
A: You should list your country of residence as the United States because continuous presence in the U.S. is one of the requirements.
Q: What should I include under “current education status?” (Question 18, I-821D)
A: If you graduated from high school you should write that you are a “high school graduate.” If you are currently enrolled in school then you should write “currently attending school.”
Q: Should I list all of my previous addresses? (Page 3 Question 3, I-821D)
A: You may list all previous addresses that you can remember.
Q: Do I have to list all entries and departures from the U.S.? (Page 3 Question 6, I-821D)
A: USCIS said that all brief entries and departures from the U.S. will not have a negative affect on a case for Deferred Action. The requirement to qualify states that applicants must have continuous presence in the U.S. from June 15, 2007 to June 15, 2012. Applicants can collect evidence from all years required, however if they have exited the country after their entry into the U.S. they may consider consulting with an attorney who is an expert in immigration law so that their case is further reviewed.
Q: What should an applicant do if they have a criminal record? (Page 4 Question 1, I-821D)
A: The application states that you should not include traffic citations unless they are drug-related. Applicants with a criminal record may be interested in consulting with an attorney who is an expert in criminal law and immigration law.
If an applicant has had problems with the law as a minor it is not considered to be a conviction under immigration law. Those with a criminal record should focus on providing a lot of evidence of good moral conduct and they may consider consulting with an attorney to have their case reviewed.
Q: Do I have to include that I am being represented by an organization or attorney? (Page 5 Question 2, I-821D)
A: Applicants should be sure to sign their application and if they are being represented by an organization or an attorney, that representative will also have to sign the application.
Q: Do I have to include information under “additional information?” (Page 6 Question 6, I-821D)
I-601A Provisional Waiver:
FAQ’s about the Provisional Waiver:
This version includes responses that include the final ruling by USCIS on the provisional waiver process for the 3 and 10 year bars that was enacted on March 4, 2013.
Note: All information in this document only applies for the following people:
-Immediate family members of U.S. citizens: Spouses, children under 21 years, and parents of U.S. citizen children older than 21 years of age.
-People that upon seeking their residency need to undergo a consular process because they didn’t enter the country with inspection nor are they protected under the section 245(i).
The terms explained:
USCIS = U.S. Citizenship and Immigration Services
I-601A = A new form that qualifying applicants will be able to file in the U.S. to obtain a provisional waiver for the 3 and 10 year bars.
245(i) = A section of the law that permits people the opportunity to receive their residency in the U.S. without obtaining a bar for unlawful presence if they have a family petition registered before April 30, 2001 and they have resided in the country since December 20, 2000.
DOS = Department of State
Entry with inspection = Having submitted a visa or permit issued by the U.S. embassy in your country of origin to an immigration officer at a port of entry.
– If you are protected under the 245(i) section you do not need a provisional waiver for the 3 or 10 year bar.
– If you entered the country with inspection or with a visa you do not need a provisional waiver (I-601A) for the 3 or 10 year bar.
What is the I-601A provisional waiver about?
On January 2, 2013 the secretary of the Department of Homeland Security, Janet Napolitano, offered more information regarding the change that would take place for the provisional waiver process for the 3 and 10 year bars.
The goal of the change was to reduce the amount of time that U.S. citizens spend separated from their family members who are undergoing a consular process to obtain their legal permanent residency.
Why is a provisional waiver needed for the 3 and 10 year bar?
People who want to obtain legal permanent residency who entered the country without inspection and don’t have the 245(i) protection are barred from the country for a period of 3 or 10 years when they leave the country to undergo a consular process.
People who have lived in the country over 180 days without an immigration status receive a 3 year bar and those who lived in the U.S. for over a year will receive a 10 year bar upon exiting the country.
• Spouses, single children under 21 years, and parents of U.S. citizen children under 21 years of age.
• NOTE: Parents need a family member that will help them qualify for the provisional waiver for the 3 and 10 year bar
• Family members that help you qualify for the provisional waiver (I-601 and I-601A) for these bars are a parent or spouse that is a U.S. citizen. Applicants must be able to prove that their U.S. citizen parent or spouse would suffer extreme hardship if their provisional waiver is denied.
• People 17 years or older
• People with an I-130 petition approved
• People who have a case pending with the Department of State who have paid all necessary application fees
• People who are inadmissible solely for unlawful presence in the U.S., in other words the only reason they need the provisional waiver is because they have a 3 or 10 year bar
• People who meet the necessary requirements published on form I-601A and the instructions for this form
• People actually present in the U.S. who can attend a biometrics appointment and are eligible to apply for the I-601A provisional waiver for unlawful presence
• People who don’t have an interview scheduled for an immigrant with the Department of State before January 3, 2013
Will I still have to leave the country?
Once an I-601A provisional waiver is approved you will have to return to your country of origin for a short amount of time to attend your consular interview and obtain your green card.
When can we start applying for the I-601A provisional waiver?
As of March 4, 2013 those who meet the requirements can apply for the I-601A provisional waiver in the U.S.
What do I need to be able to register the I-601A provisional waiver in the U.S.?
• You will need to obtain the I-601A provisional waiver form on www.uscis.gov
• You will need to be able to prove that your U.S. citizen spouse or parent will suffer extreme hardship if you are denied the provisional waiver
• You will need to be able to return to your home country to undergo a consular process upon having the I-601A provisional waiver approved
• You will have to notify the National Visa Center from the Department of State that you will be applying for the I-601A provisional waiver in the U.S.
What happens if my I-601A provisional waiver is denied?
If your I-601A provisional waiver is denied you will not be able to appeal the decision or file a motion to reopen. For this reason it is important to organize all adecuate information from the beginning prior to filing form I-601A. You will
however be able to file a new form I-601A if your provisional waiver is denied for insufficient evidence to prove extreme hardship.
Who is not eligible for the I-601A provisional waiver?
• People who have an I-485 form pending with USCIS
• People in removal proceedings that have not been administratively closed
• People who have been deported, removed or excluded from the U.S.
• People subjected to the reinstatement of a removal order
• People who have an interview scheduled by the Department of State before January 3, 2013
• People who can’t prove that the denial of a provisional waiver would result in the extreme hardship of a U.S. citizen parent or spouse
• People who are found inadmissible for other reasons other than unlawful presence in the U.S.
Will I be referred to ICE for deportation proceedings if the I-601A provisional waiver is denied?
The director of USCIS, Alejandro Mayorkas, explained that USCIS has no intention of referring I-601A applicants to ICE upon the approval, denial or withdraw of an I-601A provisional waiver. Only people that have a criminal record who have committed fraud or are a threat to national and public security will be referred to ICE.
What happens if I am undergoing deportation proceedings?
Only certain people in deportation proceedings will be eligible to apply for the I-601A provisional waiver for the 3 and 10 year bars in the U.S. If a case was administratively closed and it has not been rescheduled after submitting the form I-601A they may be eligible for the I-601A provisional waiver.
For more information visit: http://www.uscis.gov/portal/site/uscis/menuitem.eb1d4c2a3e5b9ac89243c6a7543f6d1a/?vgnextoid=bc41875decf56310VgnVCM100000082ca60aRCRD&vgnextchannel=bc41875decf56310VgnVCM100000082ca60aRCRD#If%20You%20Are%20in%20Removal%20Proceedings
You must notify an immigration judge and ICE as soon as possible if you have applied for the I-601A provisional waiver inside the U.S. so that they can cancel removal proceedings prior to exiting the U.S. for your consular interview.
Cases in a court of immigration must be resolved by a judge before an I-601A applicant leaves the U.S.
How long does USCIS take to process the I-601A provisional waivers?
The director of USCIS, Alejandro Mayorkas stated that they don’t know how long this process will take. He explained that there is not a determined amount of time for this process. He did note however that the waiting period that families spend apart while a provisional waiver is processing will be shorter.
How much time will I have to spend outside of the U.S. after my I-601A provisional waiver is approved?
Applicants will have to return to their home country for a short amount of time after the I-601A provisional waiver is approved. The director of USCIS, Alejandro Mayorkas has stated that it is not yet known how much time will be spent outside of the country after an I-601A provisional waiver is approved. He explained that the process will be cut shorter than the amount of time that it takes for the I-601 provisional waiver process.
Is it possible to qualify for a work permit while my I-601A application is pending?
The sole purpose of having an I-601A application pending does not qualify an applicant for a work permit.
My spouse already left the country. Can they still qualify for an I-601A provisional waiver?
No. One of the requirements for the I-601A provisional waiver is that the applicant be present in the U.S.
They told my spouse that he must wait 10 years before being eligible for a provisional waiver.
Can they apply for the I-601A?
No. Individuals who have attended their consular interview and received a letter stating that they don’t qualify for a provisional waiver until they reside outside of the U.S. for 10 years have been deemed ineligible because the consular officer reviewing their case discovered evidence that the applicant doesn’t only need a provisional waiver for the 3 and 10 year bars. For example if a person lived in the U.S. for over a year without an immigration status and they left the country and returned at a later time they receive yet another bar and for this reason they must wait outside of the U.S. for at least 10 years before being eligible to apply for a provisional waiver.