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Deferred Action Eligibility Update

Obama announced his new immigration policy regarding “DREAMers” on June 15. This new policy will allow certain eligible young people to apply for deferred action, renewable every two years that would allow them to stay and work in the United States (with a social security number), even if they might otherwise be removable.The eligibility criteria outlined in the original Department of Homeland Security memo was somewhat vague and has led to a lot of questions about how age and a criminal history will affect someone’s eligibility.

According to the June 15 memo, individuals 30 years of age and younger are eligible for deferred action. This left some people wondering if people who have turned 31 since the memo will still be eligible to apply, and new guidance indicates that they will be, so long as they were under the age of 31 on June 15, 2012. Presumably, once granted deferred action, you will still be able to apply for renewals every two years even if you are older than 30.

Conviction for a felony, “significant misdemeanor”, or multiple misdemeanors disqualifies you for deferred action. Of course the immediate question that arises is “What is a significant misdemeanor?” Unfortunately, this term is not defined in the memo and does not appear in existing immigration law. However, here is what the Immigration Council Legal Action Center has pieced-together based on information obtained from USCIS.

First, any felony will disqualify you from this program, and a felony includes any federal, state, or local criminal offense punishable by more than one year in prison. This means that even some crimes otherwise categorized as misdemeanors will count as felonies for the purpose of this policy if they are punishable by more than a year in prison.

A “significant misdemeanor” includes any crime punishable by less than one year in prison which involves: violence, threats, assault, domestic violence, sexual abuse or exploitation, burglary, larceny, fraud, driving under the influence of alcohol or drugs (DUI), obstruction of justice, bribery, unlawful flight from arrest or prosecution, leaving the scene of an accident, unlawful possession or use of a firearm, drug distribution or trafficking, or unlawful possession of drugs. A conviction for one or more of the above crimes will disqualify you from the deferred action program, and also could put you on ICE’s radar which may lead to removal proceedings. It is therefore very important to consult with an immigration attorney before applying for deferred action, especially if you have any history with the police.

Finally, people convicted of three or more “non-significant misdemeanors” will also be ineligible for deferred action. This could potentially be a problem for people who have convictions from jurisdictions where minor driving offenses are treated as criminal misdemeanors.

The rules surrounding Deferred Action for DREAMers continue to evolve and the application process is still being finalized. I will be updating my blog and the deferred action page on my website with details as they become available.

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