New Immigration Policy-Dream Act

On June 19, 2012 President Barack Obama announced a new policy in an unprecedented effort to transform immigration enforcement into one that will focus on public safety, border security and the integrity of the immigration system rather than upon young men and women who were brought to this Country at a young age and who have otherwise assimilated into our culture.

Effective immediately, certain young people who were brought to the United States through no fault of their own while they were young children will no longer be place into removal proceedings or be removed from the United States if they can satisfy certain criteria. It is important to note that this is a policy initiated by the Executive branch and is not based upon any legislation passed by the current Congress. In part, this regulation was instituted because of the failure of the Congress to pass what had been referred to as the “Dream Act”.

Those individuals who can meet the necessary criteria will receive deferred action for a period of two years. This will be subject to renewal after the two year period. Individuals must be able to prove through verifiable documentation that they meet the criteria for deferred action. They must currently be in the United States and prove that they have been physically present in the United States for a continuous period of not less than five years as of June 15, 2012. This process will not, however, lead to citizenship as only Congress can confer such rights through legislation. The processing of applications for deferred action should begin on or about August 14, 2012 when the implementation of the application process should have been completed.

The following are the criteria which must be met:

1. Must have come to the United States under the age of sixteen;

2. Must have continuously resided in the United States for at least 5 years preceding the date of June 15, 2012 and must be present in the United States as of June 15, 2012;

3. Must currently be in 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. Cannot have been convicted of a felony offense, a significant misdemeanor offense, multiple misdemeanor offenses or otherwise pose a threat to the national security or public safety;

5. Cannot be above the age of 30 years.

Applicants will be subject to 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 or older.

The deferred action an individual receives will not confer lawful status. 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. The deferred action will not absolve individuals of any previous or subsequent periods of unlawful presence.

Once the alien receives deferred action he/she will be eligible to receive employment authorization for the period of the deferred action and any renewals as long as “an economic necessity for employment” can be shown.

Even those persons who are now subject to a final order of removal, who show they meet the necessary criteria, will be eligible for deferred action under this program.

Although the regulations seem straight forward, there could be certain pitfalls or concerns especially for aliens who have misdemeanor convictions. In particular, whether a misdemeanor is “significant” is a matter that could lead to differing opinions requiring submission of legal arguments/briefs.

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