The Obama Administration has now implemented a portion of “DREAM Act” principles, now called DACA. It allows certain illegal foreigners who were brought to the U.S. as children to remain in the U.S. and not be deported.
Young people who are at least 15 years of age and are under the age of 31 as of June 15, 2012 may apply for deferment, so long as:
- the child came to the U.S. before the age of 16;
- have been physically present in the U.S. since June 15, 2007 (in some cases, short trips out of the U.S. can be o.k.);
- are in the U.S. now;
- are either now in school or have completed high school (or GED type program), or else have served in the military (Note: It is possible to complete the high school equivalency GED exam even if you have not already completed it. Enrollment in a GED type program may be GED, but also it can be other types of schooling as well. Schooling must be designed to further post-secondary education, or provide vocational training, etc. If you are not yet enrolled in a GED program, you can search for one at your State’s Department of Education. For example, here is a link to courses in Colorado); and
- do not have criminal convictions (unless perhaps only one minor offense ).
This new policy does not grant lawful residence to the child. It is not a change in law. It does not make someone legal. It is a policy change by the President to stop deportations for this group brought to the U.S. as children at no fault of their own and allow them to remain in the U.S. without the fear of deportation. This opens the door for DREAMer children to remain in school, for example. Another important benefit it that is stops young adults from accruing “unlawful presence” after the age of 18 years. For those brought to the U.S. as children, penalties for being here illegally start at age 18. Deferment can freeze the clock on unlawful presence and help limit penalties.
Eventually, Congress must decide whether to grant a path to lawful immigration for this group. For now, they can simply remain in the U.S. See the announcement by Janet Napolitano, the Secretary of the Department of Homeland Security.
The policy discusses the possibility of obtaining work authorization. Work authorization is normally a benefit that goes together with lawful immigration status. However, where a foreigner is granted deferred action under this policy, work authorization is available. Work authorization is made part of the application process.
Once deferment is granted, then it can be possible to apply separately for international travel privileges if there is a good reason for travel, such as to see a sick relative. The travel privileges assure an ability to return to the U.S. after a visit home.
This new policy carries some risks. You should not trust the U.S. government to act favorably on your case. Immigration officers are paid to find problems and deny. The manner of entry is important. Whether the foreigner has worked before now can be a problem. When I screen cases, I often find immigration benefits for the foreigner that they did not know. It helps to have a case assessment by an experienced immigration attorney.
If you know someone who appears to meet the eligibility requirements above, please have the foreigner contact a well-qualified attorney to consider how best to proceed. Discretion means the USCIS has the power to decide whether or not to grant deferment. If denied, the foreigner can be put into removal proceedings, so there are risks that need to be considered. Don’t just file.
If deferment is granted, it must be renewed every two years. Under this current policy, renewals can continue every two years, even after the foreigner turns 31 years of age.
As a final note, this “DREAM Act” policy change does not help foreign parents obtain lawful status. If the parent entered the U.S. illegally, normally there is nothing that can be done to help to the parent become legal with very few exceptions. Here is a blog post on how to try and legalize the status of those adults who do not qualify under the DREAM Act principles: Illegal Entry – 601 Bar Waiver