Q: Are these new regulations the DREAM Act?
A: No they are not. The DREAM act would have afforded certain young people brought to the US as children the ability to obtain permanent residence. These new regulations will allow those eligible to be free from the fear of being removed and will afford them the right to remain in the US under the color of law and the right to obtain work permission. While not as good as the DREAM act, it is a significant and positive development.
Q: What was enacted?
A: A set of rules that afford those young people eligible the ability to be placed in deferred removal status. This status will afford such individuals the right to remain in the United States and obtain a work authorization.
Q: Will this assist individuals in removal proceedings or those ordered removed?
A: Yes. It will stop the removal of those individuals eligible and will result in the ending of removal proceedings.
Q: Will it help those who agreed to take voluntary departure but never left?
A: Yes, those individuals who are eligible will obtain relief from the severe consequences of VD even if they did not leave the United States .
Q: Will those granted deferred removal under these rules be able to leave the US?
A: In order to leave the US you must obtain special permission which will only be considered after the deferred removal is granted. However, this permission, even if granted, as well as eligibility under the act will not stop the accrual of unlawful presence. This is critical because if someone over 18 accrues unlawful presence and leaves the US they are barred form returning for ten years. Inasmuch as departures could lead to extremely severe repercussions, it is critical to speak to an attorney prior to making such a departure.
Q: Will deferred removal under these rules ever lead to permanent residence?
A: No. This benefit will not by itself lead to permanent residence. For that reason it is critical to speak with an experiences and knowledgeable attorney to determine if there is any manner to later regularize your status.
Q: Do brief departures from the US interrupt the continuous residence requirement?
A: The USCIS has determined that brief, innocent and casual departures will not interrupt the continuous residence. That is great news for many applicants who may have travelled home for vacations when they were younger, or took a brief trip outside the U.S.
Q: What offenses are considered serious misdemeanors that would stop relief from being granted?
A: Serious misdemeanors have been determined to be ones in which the sentence is one year or less but greater than five days, and the individual was sentenced to custody of greater than 90 days. The sentence must involve time actually to be served, and does not include a suspended sentence. It also includes the following crimes, irrespective of the sentence: domestic violence; sexual abuse; burglary; illegal possession or use of a firearm; drug distribution or trafficking; and driving under the influence.
Q: Will individuals currently in status be considered under these rules?
A: No. The service has determined that only those qualified young people who are out of status are eligible for deferred removal. Thus is you are in valid student status, or dependent status such as H-4 or E-2 or even in temporary Protected Status, you will not be eligible.
Q: When will applications be able to be submitted?
A: August 15, 2012.
Q: If the deferred action is denied, will the applicant be placed in removal proceedings?
A: USCIS has stated that if the case does not involve a criminal offense, fraud or a threat to national security or pubic safety or exceptional circumstances, the case will not be referred for removal proceedings in the event that relief is not granted.
If you need help or advise, call us at 212-944-9420.