President Obama announced a significant change in its previously announced prosecutorial discretion program. Effective immediately (although without a process to use yet), any person who meets the following criteria can be considered for an exercise of
prosecutorial discretion, can live free of the fear of deportation, can get a work permit:
- came to the United States under the age of sixteen;
- has continuously resided in the United States for a least five years preceding June 15, 2012, and is present in the United States on June 15, 2012;
- is currently in school, has graduated from high school, has obtained a general education development certificate, or is an honorably discharged veteran of the Coast Guard or Armed Forces of the United States;
- has not been convicted of a felony offense, a significant misdemeanor offense, multiple misdemeanor offenses, or otherwise poses a threat to national security or public safety; and
- is not above the age of thirty.
Here is the really important part: No individual should receive deferred action under this policy unless they first pass a background check and requests for relief pursuant to this memorandum are to be decided on a case by case basis. DHS cannot provide any assurance that relief will be granted in all cases. That means that if you apply and are denied, you can be placed in removal proceedings, OR if a new President comes in and decides to change the policy, you can be put into removal proceedings.
How Will People Apply?
The Secretary of Homeland Security has ordered Immigration and Customes Enforcement (ICE), U.S. Customs and Border Protection (CBP), and U.S. Citizenship and
Immigration Services (USCIS) to do the following for the following types of people:
1. With respect to individuals who meet the above criteria, ICE and CBP should
immediately exercise their discretion, on an individual basis, in order to prevent low
priority individuals from being placed into removal proceedings or removed from the
• USCIS is instructed to implement this memorandum consistent with its existing guidance
regarding the issuance of notices to appear.
This means that there is NOTHING to apply for today. This will likely take, at least for USCIS at least 60 days to put into effect. Do NOT trust Notarios, and understand there is nothing to file now.
2. With respect to individuals who are in removal proceedings but not yet subject to a final order of removal, and who meet the above criteria:
• ICE should exercise prosecutorial discretion, on an individual basis, for individuals who
meet the above criteria by deferring action for a period of two years, subject to renewal,
in order to prevent low priority individuals from being removed from the United States.
• ICE is instructed to use its Office of the Public Advocate to permit individuals who
believe they meet the above criteria to identify themselves through a clear and efficient
• ICE is directed to begin implementing this process within 60 days of the date of this
• ICE is also instructed to immediately begin the process of deferring action against
individuals who meet the above criteria whose cases have already been identified through
the ongoing review of pending cases before the Executive Office for Immigration
3. With respect to the individuals who are not currently in removal proceedings and meet the above criteria, and pass a background check:
• USCIS should establish a clear and efficient process for exercising prosecutorial
discretion, on an individual basis, by deferring action against individuals who meet the above criteria and are at least 15 years old, for a period of two years, subject to renewal,
in order to prevent low priority individuals from being placed into removal proceedings
or removed from the United States.
• The USCIS process shall also be available to individuals subject to a final order of
removal regardless of their age.
• USCIS is directed to begin implementing this process within 60 days of the date of this
For individuals who are granted deferred action by either ICE or USCIS, USCIS must accept
applications to determine whether these individuals qualify for work authorization during this
period of deferred action.
So, what should you do right now? First, make an appointment and go see an experienced attorney, do NOT go to a Notario! Second, Take a picture with a newspaper from June 15, 2012 to document your presence in the United States today. Third, begin collecting evidence of your physical presence in the United States for the last five years, for most folks this will be through school records and tax returns; Finally, relax! There is no ability to apply immediately. At least for those not in removal proceedings there is no set process yet to follow.
Call the attorneys at Kuck Immigration Partners to assess your eligibility for this relief and to begin the application process.