Deferred Action (for Adults)
Give thanks to the great music legend, John Lennon. It is because of Mr. Lennon that we have Deferred Action. Deferred Action existed as a “non-priority program” under legacy Immigration and Naturalization Services (INS). It remained widely unknown until the United States tried to deport John Lennon from the United States. After Lennon was ordered removed to England, his attorney filed a FOIA request. The FOIA response revealed an unpublished document entitled “INS Operations Instructions.” It described “non-priority” as, “an act of administrative choice to give some cases lower priority.” One of the many legal strategies that Lennon’s attorney used was to try to get INS to declare Lennon a “non-priority” deportation case, and thus allow him to stay in the United States. After a number of years, INS finally made that decision and allowed Lennon to remain in the U.S. Tragically, Lennon was murdered in the New York City building where he lived with his wife Yoko Ono.
“Non-priority” was renamed “Deferred Action” in 1975 under new and publicly released Operations Instructions, which stated, “in every case where the district director determines that adverse action would be unconscionable because of the existence of appealing humanitarian factors, he shall recommend consideration for deferred action category.”
On June 15, 2012, President Obama created a new policy calling for Deferred Action for certain undocumented young people who came to the U.S. as children. Applications under the program which is called Deferred Action for Childhood Arrivals (“DACA”) began on August 15, 2012. For more information on DACA, please click here. The section below is limited to “Deferred Action” requests for adults.
What is Deferred Action?
Deferred Action is a form of relief that is typically granted to individuals whose cases raise compelling humanitarian concerns and to individuals whose removal is not in the best interests of the U.S. government. There are two important things to note about Deferred Action. First, it does not provide a pathway to permanent residency. Second, it is a “discretionary” grant to provide “limited” relief on a “temporary” basis to foreign nationals who do not qualify for other immigration benefits. This means that the government has wide discretion to approve or deny the request.
We believe that many clients can make a genuine request for Deferred Action. For example, many people are hard-working individuals who have integrated themselves into American society. They have strong community ties, pay their taxes, own property, run businesses, employ U.S. workers, donate to charities, dedicate time and money to charitable organizations, and are active members of religious organizations. Many of them do not have a single traffic offense. If you believe you are one of these people, please contact us. As long as these individuals do not commit serious crimes or become other targets for enforcement, they are extremely unlikely to be deported. Remember, the government has limited enforcement resources which must remain focused on individuals who present threats to national security, public safety and border security.
Where Did “Deferred Action” Come From?
Deferred Action is not a new concept. In fact, for decades legacy Immigration and Naturalization Service (INS) used Deferred Action to provide limited relief to foreign nationals who do not qualify for other immigration benefits available to individuals in critical circumstances. It is a long-standing administrative mechanism dating back decades by which the Secretary of Homeland Security may defer the removal of an undocumented immigrant for a period of time. A similar form of administrative relief, known as “indefinite voluntary departure” was originally authorized by the Reagan and Bush Administrations to defer the deportations of an estimated 1.5 million undocumented spouses and minor children who did not qualify for legalization under the Immigration Reforms and Control Act of 1986. Known as the “Family Fairness” program, that policy was specifically implemented to promote the humane enforcement of the law and ensure family unity.
What is the Law Behind Deferred Action?
There is no statutory basis for Deferred Action, but the regulations reference this type of relief and provide a brief description: “Deferred action, an act of administrative convenience to the government which gives some cases lower priority…”
Why was Deferred Action Implemented?
Deferred Action is a form of prosecutorial discretion by which the Secretary deprioritizes an individual’s case for humanitarian reasons, administrative convenience, or in the interest of the Department’s overall enforcement mission.
Who Has the Authority to Decide Deferred Action Requests?
Upon creation of the Department of Homeland Security (DHS) in 2003, the power to grant Deferred Action was formally delegated to U.S. Citizenship and Immigration Services (USCIS), as well as U.S. Immigration and Customs Enforcement (ICE), and U.S. Customs and Border Protection (CBP). The employment authorization regulations also briefly describe this form of administrative relief, classifying Deferred Action as, “an act of administrative convenience to the government which gives some cases lower priority.” Deferred Action cannot be granted by an Immigration Judge. Also an Immigration Judge cannot review a denial of Deferred Action.
What Benefits Does Deferred Action Convey?
A grant of Deferred Action indicates that the government has, temporarily, declined to exercise its authority to remove a particular individual from the United States. As such, the named individual may remain, provisionally, in the United States. A person given Deferred Action Status is able to remain, temporarily, in the United States. During this time of approval, the government will not issue a Notice to Appear (NTA), the document that places an individual in removal proceedings. If approved, the individual can apply for an Employment Authorization Document (EAD). The grant of Deferred Action does not erase previous unlawful presence, but it does stop additional unlawful presence from accruing.
What are the Requirement for Deferred Action?
General factors that the government looks at include:
- Humanitarian issues
- Presence of sympathetic factors
- The likelihood of eligibility to gain legal status
- Likelihood of ultimately removing the individual from the U.S.
- Family ties to the United States
- Criminal history
- Immigration concerns
- Adverse publicity due to sympathetic factors if an effort is made to remove the individual from the U.S. (e.g. against public policy)
- Individual’s continued presence is desired by law enforcement for an ongoing investigation or review
- Whether the individual is a member of a class given high enforcement priority (e.g. terrorist, drug traffickers)
What Types of Cases Have Received Deferred Action?
USCIS has typically granted Deferred Action to individuals suffering serious medical conditions and to persons temporarily prevented from returning to their home country due to a natural disaster. In our experience, we have made compelling arguments to keep other types of individuals in the U.S.
Historically, Deferred Action has been given to classes of unlawfully present individuals that include:
- Spouses and minor children of certain legalized immigrants
- In August of 2001, legacy INS issued guidance providing Deferred Action to individuals who were eligible to the recently created U and T visas
- Two years later, USCIS issued additional guidance instructing its officers to apply it to U visa applicants facing potential removal proceedings
- In June of 2009, USCIS issued a memorandum providing Deferred Action to certain surviving spouses of deceased U.S. citizens and their children
- International students affected by Hurricane Katrina
USCIS also granted Deferred Action relief in the U visa context where an individual has suffered substantial physical or mental abuse as a result of having been a victim of a crime or similar activity involving rape, torture, trafficking, incest, and/or domestic violence. On rare instances, DHS has agreed to not deport individuals with criminal records, the mentally incompetent, the physically impaired, notorious drug traffickers, and other aggravated felons, using prosecutorial discretion.
Can I Apply for Deferred Action if I Am in Removal Proceedings or Have a Removal Order?
A person who is in removal proceedings, has a removal orders, or has a case that has been administratively closed by the Immigration Court are all eligible to apply for Deferred Action. The very purpose of Deferred Action is to allow an individual to remain in the U.S. temporarily.
How Do I Apply for Deferred Action?
It is never our recommendation that a person apply for Deferred Action on their own. You have one chance to get it right, don’t gamble with your life. Typically, an individual can submit a Deferred Action request in-person, or by mail, to a local USCIS office. USCIS does not have a nationwide process for acknowledging the receipt of Deferred Action requests, but many USCIS offices have implemented a local method for logging submissions and acknowledging their receipt. Other offices do not issue a written acknowledgment of receipt for Deferred Action requests.
What Is the Filing Fee for Deferred Action?
Deferred Action requests are not filed on a standardized application form and there is no filing fee that covers the costs associated with processing Deferred Action requests. The only filing fee that would apply is the filing fee for the Employment Authorization Document.
How are Deferred Action Requests Processed?
Here is where it gets sticky. Currently, there are no official, national standard operating procedures for how to process a Deferred Action request. Nevertheless, most USCIS offices follow some sort of informal, standard process, rather than proceeding in an ad hoc fashion.
Normally, a Deferred Action request is reviewed at the local office. A summary sheet explaining the positive and negative equities associated with the Deferred Action request is completed. The District Director reviews the summary and makes a recommendation. That recommendation is forwarded to the Regional Director. The Regional Director issues a decision on the recommendation and returns the final decision to the District Director so that he/she may deliver it to the applicant.
What is the Processing Time for Deferred Action Requests?
There is no system in place to hold local offices accountable for issuing decisions within a certain timeframe, and USCIS did not report any coordinated efforts across districts to share locally developed solutions for managing a significant Deferred Action workload.
Recently, USCIS Headquarters began tracking Deferred Action requests. USCIS Headquarters has instructed district directors to send data on Deferred Action decisions to the National Benefits Center for tracking. In addition, USCIS devised a template acknowledgment letter for local offices to issue in response to requests for Deferred Action. However, not all local offices use the template letter. Stakeholders have reported that some local offices do not issue any type of written acknowledgment that a Deferred Action request has been received.
What Happens When Your Deferred Action Request is Approved?
Once granted Deferred Action, the applicant is eligible to apply for employment authorization. If USCIS grants a request for Deferred Action, the individual is provided employment authorization.
How Long Does a Grant of Deferred Action Last?
When USCIS grants Deferred Action, it is usually valid for one to two years. Deferred Action is legally available so long as it is granted on a case-by-case basis. It may be terminated at any time at the agency’s discretion. Deferred Action does not confer any form of “legal status” in the U.S.; it simply means that, for a specified period of time, an individual is permitted to be lawfully present in the U.S.
Given all of the benefits of Deferred Action, including the absence of a filing fee, temporary authorization to remain in the U.S., and the opportunity to apply for employment authorization (required to obtain a driver’s license and social security number), we find it surprising that many clients have never heard of it.
Is Deferred Action the Same as “Extended Voluntary Departure” or “Deferred Enforced Departure”?
No. Extended Voluntary Departure (EVD) is a legal term for programs that permit the Attorney General to exercise discretion to temporarily delay the removal of individuals from particular countries who fear return because of sudden political changes in their countries of origin or other reasons. EVD is a special temporary provision granted administratively to designated national groups physically present in the U. S. The benefit is granted because the U. S. State Department judged conditions in the countries of origin to be unstable or uncertain or to have shown a pattern of denial of rights. Individuals given EVD status are temporarily allowed those unable to return to their homeland due to ongoing hostilities to remain in the U. S. until conditions in their home country changed. An EVD program was established for Polish citizens who entered the U.S. before July 21, 1984, during the Polish government’s efforts to destroy the Solidarity movement. EVD was in use from 1960 to 1990, after which it became known as Deferred Enforced Departure.
Deferred Enforced Departure (DED) applies to individuals from a country (designated by the President) that is in the midst of political or civil conflict. DED allows its recipients to stay in the U.S. for a certain period of time and to work (after applying for and receiving an employment authorization document, also known as a work permit). Although DED is not a specific immigration status, individuals covered by DED are not subject to enforcement actions to remove them from the United States, usually for a specific period of time. Recipients may also apply for Advance Parole in order to return to the U.S. after travel outside the country. However, traveling back to the country from which you sought DED protection will destroy your eligibility. Also, if someone has DED and applies for asylum and their application is not approved, the individual’s case will be referred to Immigration Court. This is because DED is not considered to be “lawful status.”
DED was used during the Persian Gulf War and for Salvadorans. On December 23, 1997, President Clinton announced a Haitian DED program pending the passage of legislation for Haitians. The DED program covered Haitians who were paroled into the U.S. or who applied for asylum prior to December 31, 1995, and had been continuously present since that date.
A decision to grant DED comes directly from the U.S. president, as a foreign relations consideration, rather than from the U.S. Department of Homeland Security (DHS). Once the President has signed a memorandum to the Attorney General directing him or her to extend the grant of DED status to nationals of a designated country in the United States, these individuals are then eligible for DED-related employment authorization.
Although there is no formal application process (DED is automatic), DED usually allows for work authorization. If work authorization has been included as a benefit of your country, a work authorization filing Form I-765 must be requested and completed accordingly. No fee is required for Form I-765, when filed for employment authorization as part of the DED program. However, applicants who are required to be fingerprinted, as described below, may have to pay a fingerprinting fee.
Interviews are optional and at the discretion of local policy. However, it is not anticipated that the majority of applicants will warrant an interview, as most will be able to demonstrate eligibility based on a previous approval for DED during the past year, or were TPS beneficiaries prior to the DED program. An interview is required for all applicants who do not submit documents, or present only an affidavit to demonstrate eligibility.
Eligibility requirements and ineligibility bars are set forth in the Presidential designation of DED for each specific group of foreign nationals. In order to be eligible for DED, the alien must demonstrate that he or she is a national who was present in the U.S. by the date required in the Federal Register notice. DED applies to anyone subject to deferral of deportation or removal. They will be granted employment authorization for the same period.
DED even helps those in detention. Individuals who are eligible for DED must be released from DHS detention. Each office must immediately review the A-file of any national presently detained in their jurisdiction to determine eligibility for DED.
As long as the individual meets all of the requirements set forth in the Presidential Proclamation, and lookout checks have been satisfactorily completed, the adjudicator is instructed to approve the application. Similarly, for issuance of Employment Authorization Documents, the adjudicator will adjudicate the forms, schedule the applicant for fingerprinting at an ASC (if necessary), conduct lookout checks, and issue employment authorization documents to approved applicants.
As a matter of law, DED protection does not extend to anyone:
- who has been convicted of an aggravated felony
- who persecuted others
- whose removal, in the opinion of the attorney general, is in the interest of the United States
- whose presence or activities in the U.S. are found by the secretary of state to have potentially serious adverse foreign policy consequences for the United States
- who voluntarily returned or returns to his or her country of last habitual residence outside the United States
- who was deported, excluded, or removed before December 23, 1997, or
- who is subject to extradition
How We Can Help:
- If you are in removal proceedings and eligible for DED, we can request that the government agree to administratively close the proceedings.
- Deferred Action requests are reviewed on a case-by-case basis. “Sympathetic factors” leaves a lot of room for our firm to make creative humanitarian arguments.
- We work with the client to present the case in a sympathetic light (specific to each client) that demonstrates humanitarian issues, likelihood of eligibility to gain legal status, family and financial ties to the U.S., economic need, length of presence in the U.S., and other similar factors.
- We work with clients to come up with an exhaustive list of documents that support our case. Our filings are sometimes 100 pages thick!
- We draft compelling legal arguments that arise out of Immigration Law but combine our client’s humanitarian factors.
- We assist with creating compelling Declarations that put the government in our client’s “shoes.”
- Local USCIS offices often lack the necessary standardized process to handle such requests in a timely and consistent manner. As a result, many offices permit Deferred Action requests to remain pending for extended periods. We can assist to make sure your case is being handled in a timely manner.
Please give us a call to discuss your case. In-person consultations are available Monday through Friday from 8:00 am to 8:00 pm and Saturdays from 8:00 am to 5:00 pm. Please call our office at 301.529.1912 or complete the form below. Please be sure to provide a timeline of events along with details of your entire immigration history./strong>