Friday, June 22, 2012

FAQs about President Obama’s DREAM Policy from Catholic Charities’ Immigration Legal Services

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On June 15, President Obama and his administration announced a new policy that grants a two-year period of “Deferred Action” to young people in the United States who do not have currently valid immigration status. This policy has the power to touch the lives of many young immigrants who call America home.

As is always the case with a change in immigration enforcement, there is a great risk of notario fraud by unlicensed immigration advisors who scam immigrants seeking legal advice.

As a resource for immigrants with questions about the recent change in immigration policy, Catholic Charities’ Immigration Legal Services Staff has developed this list of Frequently Asked Questions (FAQs) to help address some common question about the new policy, who it affects, and how to get help.

Is this the DREAM Act?
No. The DREAM Act failed in Congress, and this executive order is not the DREAM Act. Instead of a path to citizenship, the Obama administration issued an executive order stating that young illegal immigrants who match certain criteria could receive “deferred action.” This means that qualified young people will not be deported for two years, if they apply for deferred action and receive it.

The order says that eligible immigrants can get “prosecutorial discretion.” What is that?
Prosecutorial discretion is the power not to prosecute people for crimes they have committed. It is used frequently at all levels of government – from local district attorneys to the President. In the case of the Deferred Action order, the “crimes” for which people will not be prosecuted are: illegal entry into the United States, possession of false identity, and employment under false identity.

Can I get my citizenship/green card if I qualify for Deferred Action?
No. The Policy expressly states that Deferred Action is not citizenship or permanent residence, and does not offer a pathway to citizenship or permanent residence.

Can I work legally if I receive Deferred Action?
Applications for employment authorization will be accepted by DHS for all those who qualify for Deferred Action, and will be adjudicated on a case-by-case basis.

Will my Deferred Action be renewable after two years?
There is no guarantee. The Department of Homeland Security (DHS) said that near the end of the two-year period of deferment, qualified young people can reapply for another two-year period. However, since Deferred Action is an executive order and not an act of Congress, it can be eliminated at any time.

How do I apply? Will there be a form to fill out? What’s the deadline? Is there a fee?
We don’t know yet. The Department of Homeland Security (DHS) has not released any of this information yet. Please check back in the coming weeks for updates as we receive them. We expect that the guidelines for applications will be available by August 15, 2012.

Am I eligible for Deferred Action under this new policy?
You are eligible if you:
  1. Came to the United States under the age of 16; and
  2. Have continuously resided in the United States for 5 years preceding date of the memorandum (June 15, 2012) and were present in the United States on the date of the memorandum (June 15, 2012); and
  3. Are in school, or have graduated from high school, or have obtained your general education development certificate (GED) or have been honorably discharged from the Coast Guard or Armed Forces of the United States; and
  4. Have not been convicted of a felony, significant misdemeanor, or three or more minor misdemeanors, and do not pose a threat to national security or public safety; and
  5. Are not above the age of thirty; and
  6. Pass a background check.
I have traveled outside of the United States and/or visited my home country in the last five years. Am I still eligible?
Yes. As long as you spent most of the last five years in the United States, you may still be eligible. Brief visits to your home country are fine as long as they do not last a long time. Consult with an immigration lawyer for specific situations.

I’m outside of the United States right now. If I enter the country tomorrow, would I qualify?
No. You must have been present in the United States on June 15, 2012.

How can I prove I was in the United States on June 15, 2012?
The best way is through copies of official documents: school records, court records, medical records, church records, and employment records. A written affidavit (statement) from someone saying they saw you or spent time with you on that day could also be used.

Will Driving under the Influence (DUI) be considered a significant misdemeanor?
Yes.

I had juvenile misdemeanor charges when I was younger. Am I still eligible?
The Department of Homeland Security has yet to release guidance concerning juvenile misdemeanor charges.

I’ve had charges, but I’ve never been to prison. I’m still eligible, right?
Not necessarily. Even if you haven’t served time in jail for your crime, it could still be considered a serious misdemeanor. DHS has not yet issued specific information about what misdemeanors will be considered serious.

I was 30 on June 15, 2012 but my next birthday is soon. Am I still eligible?
Yes. As long as you were 30 on June 15, 2012 and meet the other criteria, you are eligible for deferred action.

I’m under 30 now, but in two years I won’t be. Will I still be able to renew my deferment?
Information sessions offered by DHS have given conflicting answers to this question. At this time, the answer to this question is unclear.

What does this background check entail?
Fingerprints will be required.  According to DHS, “[b]ackground checks involve checking biographic and biometric information provided by the individuals against a variety of databases maintained by DHS and other federal government agencies.”

I came to the United States with my parents, who are still here illegally. If I say that in the background check, will DHS go after my parents?
No. DHS has said they will not go after anyone based on information provided by a relative on a background check.

I qualify for deferment under this order, but I’m a minor living with my parents, who are also here illegally. Can they get deferment, too?
Not under this order. Parents of young people who qualify for the deferment can still be deported.

If I qualify for deferment and marry someone who does not, will they get deferment too?
No. Deferred action  cannot keep your spouse from being deported.

What if I have children born in the United States while I am here under deferment?
All children born in the United States are United States citizens.

I think I’m eligible for deferment, but I’m in removal proceedings/ subject to final order of removal/in immigration detention/about to be removed by Immigration and Customs Enforcement (ICE). What should I do?
Talk to your lawyer or an immigration attorney. If you qualify for deferment, they can terminate proceedings so you are not deported.

I’m not sure if I qualify because of my criminal record. Should I still apply?
Talk to an immigration lawyer first. At this time we’re not sure whether DHS will use the information provided in a person’s rejected application for deferment to seek out that person for arrest.

I’m not eligible under the new order, but I am eligible under the June 2011 Prosecutorial Discretion Memorandum. Is that still in effect?
Yes. You can still apply for prosecutorial discretion under the June 2011 Memorandum. The new order is not replacing that one, just adding to it.

I’m not eligible for the new order, but I want to stay in the United States. What should I do?
Consult with an immigration attorney or an organization licensed to provide immigration legal assistance, like Catholic Charities, about other avenues to obtain legal immigration status.

I think I’m eligible! What should I do?
Deferred action under this order will not be available until August 15, 2012. Do not apply now; your application will be automatically rejected.
What you should begin doing is gathering necessary documents to prove your eligibility. These include: Education: high school diploma or GED certificate; records (report cards, registrations) that show you are presently enrolled in high school or a GED program
Proof of your residence in the United States for the last 5 years: financial forms, bank statements, tax forms, health records, school records
Proof of how you came to the United States: If you have none, write a statement that tells how you came.
If you were in the Armed Forces, get proof of your honorable discharge.
If you have a criminal record, get a certified copy of your court disposition from the court that handled your case

Can I go to a notary public / notario público for help with my application or other legal advice?
No. In the United States, notariesb / notarios públicos are not authorized to practice law. Anyone who tells you they can apply for you, or submit the application today, is lying.

To make sure you are not scammed, ask to see a degree from a law school and a certificate to practice law, and ask what state the person is licensed to practice law in.

I am afraid that the rules for Deferred Action might change. Could they?
Yes. We are in the very early days of this program and have yet to receive formal guidance from the Department of Homeland Security about how it will be administered. In addition, it is possible that this executive order could be reversed. Consult an attorney before filing your application.

Special thanks to Attorney James Montana and the rest of the ILS staff for their assistance. Catholic Charities’ ILS provides legal assistance on a full range of immigration issues. For more information about their services, please visit their website or call 202-772-4352
More information about the new policy is available at: www.uscis.gov, www.ice.gov, and www.dhs.gov. You can also call USCIS' hotline at 1-800-375-5283 or ICE's hotline at 1-888-351-4024 during business hours with questions or to request more information.

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