ICE: Deferred Action Process

What is Deferred Action?

Deferred action is a discretionary determination to defer removal action of an individual as an act of prosecutorial discretion. Deferred action does not confer lawful status upon an individual. In addition, although an alien granted deferred action will not be considered to be accruing unlawful presence in the United States during the period deferred action is in effect, deferred action does not absolve individuals of any previous or subsequent periods of unlawful presence.

Under existing regulations, an individual who has been granted deferred action is eligible to receive employment authorization for the period of deferred action, provided he or she can demonstrate “an economic necessity for employment.” Deferred action can be terminated at any time at the agency’s discretion or renewed by the agency.

Procedures to Apply for Deferred Action:

Individuals who are not in removal proceedings or who are subject to a final order of removal will need to submit a request for a review of their case and supporting evidence to U.S. Citizenship and Immigration Services (USCIS). Individuals may request deferred action if they meet the eligibility criteria. In the coming weeks, USCIS will outline and announce the procedures by which individuals can engage in this process. This process is not yet in effect and requests should not be submitted at this time. Beginning June 18, individuals may call the USCIS hotline at 1-800-375-5283, from 8 a.m. to 8 p.m., with questions or to request more information on the new process. The hotline offers assistance in English and Spanish. Individuals seeking more information on the new process should visit USCIS’s website (at http://www.uscis.gov).

For individuals who are in removal proceedings before the Executive Office for Immigration Review, ICE will, in the coming weeks, announce the process by which qualified individuals may request a review of their case. Additional information is available from the ICE Office of the Public Advocate. Beginning June 18, individuals may call the ICE hotline at 1-888-351-4024, from 9 a.m. to 5 p.m., with questions or to request more information on the new process.

For individuals who are in removal proceedings and have already been identified as meeting the eligibility criteria as part of ICE’s case-by-case review, ICE will immediately begin to offer deferred action for a period of two years, subject to renewal.

Who is eligible?

Pursuant to the Secretary’s June 15, 2012, memorandum, in order to be eligible for deferred action, individuals must:

1) Have come to the United States under the age of 16;

2) Have continuously resided in the United States for at least five years preceding the date of this memorandum and are present in the United States on the date of this memorandum;

3) Currently be in school, have graduated from high school, have obtained a general education development certificate, or are honorably discharged veterans of the Coast Guard or Armed Forces of the United States;

4) Have not been convicted of a felony offense, a significant misdemeanor offense, multiple misdemeanor offenses, or otherwise pose a threat to national security or public safety;

5) Not be above the age of 30.

Individuals must also complete a background check and, for those individuals who make a request to USCIS and are not subject to a final order of removal, must be 15 years old or older.

How do you prove your eligibility?

Documentation sufficient for an individual to demonstrate that he or she came to the United States before the age of 16 includes, but is not limited to: financial records, medical records, school records, employment records, and military records.

Link to ICE

Individuals seeking more information on the new process should visit ICE’s website, USCIS’s website, or DHS’s website.  Beginning June 18, individuals can also call ICE’s hotline (at 1-888-351-4024) or USCIS’s hotline (at 1-800-375-5283) during business hours with questions or to request more information on the new process.

Report Regarding Highly Skilled Immigrants (H1-B Visas)

The American Immigration Law Foundation issued a link to a recent report regarding quotas on visas for highly skilled immigrants. Surprisingly, the annual number of such visas allowed in the United States is now only 65,000. The report discusses the impact that this quota has on the international competitiveness of the United States in the global economy. The sumary of the report is set forth below.

U.S. Immigration Policy in Global Perspective:International Migration in OECD Countries
by David L. Bartlett, Ph.D.

REPORT SUMMARY

The United States possesses a number of competitive assets in the global war for talent: most notably, its huge and flexible labor market and an abundance of leading-edge multinational corporations and world-class universities. However, the United States also faces growing competition in the global labor market from other countries within the Organization for Economic Cooperation and Development (OECD), as well as from the expanding economic opportunities available in the home countries of Indian and Chinese professionals who constitute a vital talent pool for U.S. high-tech companies.

These trends underscore the need to revamp U.S. immigration policies to make them more responsive to the demands of an increasingly competitive global economy. Yet the quota-based immigration system of the United States diminishes the country’s ability to sustain, let alone expand, inflows of high-skilled immigrants.

The optimal remedy for this defect in U.S. immigration policy is to replace the H1-B visa program for highly skilled foreign professionals with a quality-selective regime along the lines of the point-based systems introduced in Australia, Canada, and New Zealand. The United Kingdom is moving in this direction, away from a work-permit regime to a multi-tiered system that would entitle high-skilled immigrants to work for any British employer or to set up their own businesses in the country. However, the political environment in the United States—where homeland security concerns remain acute five years after September 11th and the furor over undocumented immigration clouds the separate issue of skilled immigration—provides little cause for optimism that such a policy reform will soon materialize.

Among the findings of this report:

• The more educated share of working-age immigrants increased significantly in several OECD countries during the 1990s, especially Ireland, the United Kingdom, Luxembourg, and Finland.
• The success of educated immigrants in securing U.S. jobs commensurate with their skills varies widely by country of origin, ranging from 76 percent of educated men from India to 25 percent of educated Moroccan men.
• Between 2000 and 2005, the U.S. foreign-born population from India experienced the most dramatic increase (39.8 percent), followed by Peru and Honduras.
• Among immigrants arriving in the United States from 2000 to 2004, 12.1 percent held advanced degrees (compared to 10.3 percent of those arriving between 1990 and 1999), while 22.2 percent had bachelor’s degrees (compared to 17.3 percent of those arriving during the 1990s).
• While China, South Korea, and Japan have increased their funding for research and development (R&D) significantly, especially since 9/11, U.S. R&D funding in the physical sciences and engineering has declined or remained stagnant since the early 1990s.
• In 2004, Congress allowed the annual H1-B quota to revert from 195,000 to its 1990 level of 65,000, which represents just 1 percent of the U.S. science and engineering workforce and has been filled before the start of each fiscal year since it took effect.

Immigration Reform: President Bush

On January 23, 2007, President Bush gave his State of the Union speech last night. In his speech, he addressed the issue of immigration reform. His proposed policy includes the following aspects taken from the White House web site:

To Secure Our Border, We Must Create A Temporary Worker Program

America's Immigration Problem Will Not Be Solved With Security Measures Alone. There are many people on the other side of our borders who will do anything to come to America to work and build a better life. This dynamic creates tremendous pressure on our border that walls and patrols alone cannot stop.

As We Tighten Controls At The Border, We Must Also Address The Needs Of America's Growing Economy. The rule of law cannot permit unlawful employment of millions of undocumented workers in the United States. Many American businesses, however, depend on hiring willing foreign workers for jobs that Americans are not doing.

To Provide A Lawful Channel For Employment That Will Benefit Both The United States And Individual Immigrants, The President Has Called For The Creation Of A Temporary Worker Program. Such a program will serve the needs of our economy by providing a lawful and fair way to match willing employers with willing foreign workers to fill jobs that Americans have not taken. The program will also serve our law enforcement and national security objectives by taking pressure off the border and freeing our hard-working Border Patrol to focus on terrorists, human traffickers, violent criminals, drug runners, and gangs.

The Temporary Worker Program Should Be Grounded In The Following Principles:

• American Workers Must Be Given Priority Over Guest Workers. Employers should be allowed to hire guest workers only for jobs that Americans have not taken.
• The Program Must Be Truly Temporary. Participation should be for a limited period of time, and the guest workers must return home after their authorized period of stay.
• Those who fail to return home in accordance with the law should become permanently ineligible for a green card and for citizenship.
• Participation Should Fluctuate With Market Conditions. When the economy is booming, and there are not enough American workers available to help businesses grow, the program should be open to more participants. But when times are tough and Americans struggle to find jobs, the economy cannot and should not support as many guest workers.

We Must Bring Undocumented Workers Already In The Country Out Of The Shadows

Comprehensive Immigration Reform Must Account For The Millions Of Immigrants Already In The Country Illegally. Illegal immigration causes serious problems, putting pressure on public schools and hospitals and straining State and local budgets. People who have worked hard, supported their families, avoided crime, led responsible lives, and become a part of American life should be called in out of the shadows and under the rule of American law.

The President Opposes An Automatic Path To Citizenship Or Any Other Form Of Amnesty. Amnesty, as a reward for lawbreaking, would only invite further lawbreaking. Amnesty would also be unfair to those lawful immigrants who have patiently waited their turn for citizenship and to those who are still waiting to enter the country legally.

The President Supports A Rational Middle Ground Between A Program Of Mass Deportation And A Program Of Automatic Amnesty. It is neither wise nor realistic to round up and deport millions of illegal immigrants in the United States. But there should be no automatic path to citizenship. The President supports a rational middle ground founded on the following basic tenets:

No Amnesty. Workers who have entered the country illegally and workers who have overstayed their visas must pay a substantial penalty for their illegal conduct.

In Addition To Paying A Meaningful Penalty, Undocumented Workers Must Learn English, Pay Their Taxes, Pass A Background Check, And Hold A Job For A Number Of Years Before They Will Be Eligible To Be Considered For Legalized Status.

Any Undocumented Worker Seeking Citizenship Must Go To The "Back Of The Line." The program should not reward illegal conduct by making participants eligible for citizenship ahead of those who have played by the rules and followed the law. Instead, program participants must wait their turn at the back of the line.

We Must Promote Assimilation Into Our Society By Teaching New Immigrants English And American Values

Those Who Swear The Oath Of Citizenship Are Doing More Than Completing A Legal Process – They Are Making A Lifelong Pledge To Support The Values And The Laws Of America. Americans are bound together by our shared ideals, our history, and the ability to speak and write the English language. Every new citizen has an obligation to learn the English language and the customs and values that define our Nation, including liberty and civic responsibility, appreciation for our history, tolerance for others, and equality. When immigrants assimilate, they advance in our society, realize their dreams, and add to the unity of America.

New Citizens Need Guidance To Succeed. The Office of Citizenship is creating new guides for immigrants and introducing a new pilot civics examination designed to foster a deeper understanding of civic virtues and the founding ideals. The President's Task Force on New Americans is fostering volunteerism through volunteer.gov and exploring partnerships with local organizations. Public libraries and faith-based and community groups will be encouraged to offer English language and civics instruction to immigrants who are seeking to make America their home.

Immigration Reform

There is a consensus in the United States today that our immigration system is broken. The question is "What is required to fix it?"

It is clear that more of the same will not work.

There are an estimated 11 million undocumented persons living and working in the United States today. Smugglers, traffickers and criminals preying on undocumented migrants have a growing negative impact on border communities.

Nearly 2,000 migrants have died trying to cross our border from the south from 1998 through 2003, and nearly 400 migrants continue to die at our borders every year.

America needs comprehensive immigration reform that will make immigration safe, orderly and legal. Such reform must provide three things:

• an opportunity for people already living and working here to earn permanent legal status;
• a new temporary worker program with adequate labor protections, so that essential workers can enter the U.S. safely, legally and expeditiously;
• backlog reductions in family-based immigration so that families can unite in a timely way.

Proposals that fail to embrace these components and seek only to increase enforcement of the current system will only exacerbate current problems.

Congress may enact harsh enforcement measures, such as the Sensenbrenner bill passed in the House of Representatives, which do nothing to increase our nation's security. Such measures only increase the pressures on hardworking but undocumented immigrants and force them to seek dangerous paths of entry to the U.S., where increasing numbers will die attempting to cross. Or Congress can engage the debate and enact realistic and comprehensive reform, which will ensure the U.S. remains a nation of immigrants in the decades to come.

AILA InfoNet Doc. No. 06092773 (posted Sep. 27, 2006)