Status For Eligibility: Only individuals who are currently not in status and were not in any lawful status on June 15, 2012 are eligible for Deferred Action under the Childhood Arrivals program. This means that children who are currently maintaining legal status on a nonimmigrant visa such as (F-1, L-2, E-2, H-4) and even those who have Temporary Protected Status (TPS) are not eligible unless proof is provided that the child had failed to maintain lawful status and was in fact in “unlawful” status as of June 15, 2012. We anticipate quite a lot of controvery surrounding these issue, including whether F-1 students who worked illegally before June 15th or otherwise failed to maintain status will be eligible. Individuals with Asylum, cancellation of removal, or similar cases pending as of June 15, 2012, who had no lawful status qualify for deferred action.
Safety of Applying: The DHS had decided that Information applicant’s provide on the form will be kept confidential, including all information relating to family members or legal guardians. This means that making an application will not jeopardize parents or any other family member who may not be in legal status. The USCIS will only refer a case to ICE or immigration court if it meets the strict criteria of the USCIS November 7, 2011 Policy Memorandum on Issuance of Notices to Appear (NTAs) in Cases Involving Inadmissible and Removable Aliens.
Other Eligibility Requirements Details:
School:Must either have graduated High School or GED or be currently enrolled in school at the time of application. That means legally registered in school.
Age Requirements to apply: For most children, the minimum age to apply is 15. So for children who are not 15 years old yet, once a child reaches age 15 in the future, as long as the child is in school, he or she is eligible to apply for Deferred Action under the Childhood Arrivals program. However, for children who are in deportation or removal proceedings, or who have a final removal or a voluntary departure order, but not in immigration detention, a Deferred Action request can be made at any time, even if the child is under age 15. The maximum age is 30, as of June 15, 2012, with no exceptions. Individual who turn age 31 after June 15, 2012 remain eligible.
Deportation/Removal Orders: Individuals who have deportation or removal order are eligible to apply without additional requirements to go through the immigration court
Update on Criminal:
Non-significant Misdemeanors - means any misdemeanor (in which the maximum term of imprisonment authorized is one year or less but greater than five days) and is not an offense of domestic violence; sexual abuse or exploitation; burglary; unlawful possession or use of a firearm; drug distribution or trafficking; or, driving under the influence; and in which the individual was sentenced to time in custody of 90 days or less. Minor traffic offenses, such as driving without a license, are not considered misdemeanors that count toward the "3 or more" standard.
Significant Misdemeanors -The DHS will deem “significant” any misdemeanor, regardless of the sentence imposed, involving burglary, domestic violence, sexual abuse or exploitation, unlawful possession of firearms, driving under the influence, or drug distribution or trafficking. In addition, any other misdemeanor for which an applicant was sentenced to more than 90 days in jail, not including suspended sentences and time held pursuant to immigration detention.
Felonies -Offenses qualify as a felonies are those federal, state, or local criminal offense punishable by imprisonment for a term exceeding one year
Filing Fee Waivers: Waivers of paying the USCIS Filing Fees will not be available. Fee Exemptions, however, can be requested, but they must be requested and approved prior to filing for Deferred Action. DHS has made it clear that Fee Exemptions will only be granted in very limited cases where a child is under age 18 and either homeless, in foster care or without parental or familial support, or the individual (age 15 – 30) cannot care for themselves due to a serious, chronic disability or the individual (age 15 – 30) has accumulated $25,000 or more in debts in the past 12 months as a result of unreimbursed medical expenses for themselves or an immediate family member. In all cases, the applicant’s income must be less than 150% of the U.S. poverty level. Extensive documentation of meeting the eligibility for a Fee Exemption will be required at the time of application.
Deferred Action Denials - No Appeal Process: If a case is denied, there will be no chance to get the case reviewed or appeal the decision. Only applications which have been denied for “abandonment” (meaning failure to respond to a Request for Evidence by the deadline) because the USCIS mailed the Request for Evidence to the wrong address, as long as the applicant filed a Change of Address (Form AR-11) before the USCIS Request was issued.
Acceptable Evidence: In addition to the previously announced documents required to prove eligibility (birth certificate, passport, I-94 card, school records, etc), the DHS will also accept-
Affidavits -in very limited circumstances, but only to “fill in the gaps” necessary to prove 5 years of continuous residence and that trips outside the U.S. during that time were “brief, casual and innocent departures” in order to prove maintenance of continuous presence in the U.S..However, Affidavits will not be acceptable to prove school attendance or graduation, military service, physical presence in the U.S. and age as of June 15, 2012, entry into the U.S. before age 16 and criminal history.
Circumstantial Evidence -when documentary evidence is insufficient or not available, (but only to supplement “direct evidence”) to show that the individual was physically inside the U.S. on June 15, 2012, had entered the U.S. before age 16 and continued to reside in the U.S., and that trips outside the U.S. during that time were “brief, casual and innocent departures” in order to prove maintenance of continuous presence in the U.S..
However, circumstantial evidences will not be acceptable to prove school attendance or graduation, military service, physical presence in the U.S. and age as of June 15, 2012