It has been a busy week.  Our firm has received dozens of calls and emails about the new deferred action policy.  Here is the first round of frequently asked question (FAQ):

1.  Is this the DREAM Act?

No, it is NOT the DREAM Act.  Do not call it the DREAM Act, because if you do, you will confuse yourself.  This is not an act, not a law.  It is just a change in policy.  That means it's something the government has decided it will do.  They are agreeing not to deport people who meet certain qualifications.  And allow them to file for a work permit good for two years and renewable. 

2.  I'm over 30 now.  Do I qualify?

No, not under this policy.  However, you should still talk to a lawyer.  Depending on your situation, the government still might be willing to grant you deferred action.  But only an experienced lawyer can say whether this is a good idea.  If you try to do it yourself, you are playing with fire.

3.  I didn't finish high school.  Do I qualify?

See answer above.  However - this is a great time to go get your GED.  If you have a GED you can make yourself qualified.  There is no deadline for filing (like there is for TPS) so as soon as you are qualified, you can file.

4.  Can I file anything now?

No.  Wait for the regulations to come out.  We expect them in mid-August.  We hope it will be sooner.

5.  I walked across the border.  How do I prove when I came in?

This is why you should not file without a lawyer.  You only get one shot.  If you are denied, you will wind up getting put into removal (deportation) proceedings. But proving entry means showing the earliest possible proof of your presence in the US.  Your lawyer can explain how to do this.

6.  I have a misdemeanor on my record, how can I tell whether this will be a "serious misdemeanor"?  Will I qualify?

We do not know yet.  Make sure you get the conviction records.  Once the regulations come out, you should talk to a lawyer to see whether it will affect you or not.  

7.  I came here for the first time when I was under 16, but I left and came back. Do I qualify?

You have to have been in the US between 6/15/2007 and 6/15/2012.  If you were out of the country during these dates, you might not qualify.  However, we will not know for sure until the regulations come out.  It may be that we can argue that a short trip does not break the continuity of presence.

8.  What if I file and I don't qualify?  What will happen?

The June 15 memorandum makes clear that the existing guidelines for NTA issuance are consistent with the new policy.  This means that if you file and you don't qualify, you can (and probably will) be put into removal proceedings.  So be careful and do not be impatient.

9.  If I qualify, and I get deferred action, can the government change its mind and decide later to deport me?

Yes.  It can.  We hope that will not happen, of course, but it is a possibility.

10.  Should I get a lawyer to help me file?

Yes.  This is not the type of thing you want to do by yourself.  The main reason is, you want to be sure it's right.  Because if it is not, you will get put into removal proceedings.  A good lawyer will help you think of additional evidence to strengthen your case.  A good lawyer will be there to help you if the government asks for more evidence while your case is pending.  And if it's denied, a good lawyer can help you explore other options.

Yes, there is a new immigration law - or policy, to be more correct. And yes, it is good news.  But it is not for everybody, and you must talk to an immigration lawyer to know whether it will help you in your case.

The Obama administration announced Friday, June 15, 2012 that it will direct the government to apply prosecutorial discretion and not proceed to deport young people who came to the US when they were younger than 16.  According to the memorandum by Secretary Janet Napolitano, children who were brought to the US by their parents lacked the ability to form the intent to break the law, and it does not make sense to expend valuable resources on deporting such people, many of whom are culturally American and know no other country, and many of whom have already significantly contributed to the United States.

This is not "backdoor amnesty" in contrast to the vitriolic complaints of those like Gov. Jan Brewer of Arizona (who signed the rather infamous SB1070 "papers, please" law, prompting a legal challenge currently being decided by the US Supreme Court.)  Amnesty means the granting of legal status to those who broke the law. No status is being granted to these hardworking people; it is simply a sensible, administrative allocation of resources that results in a more humane, just immigration system, and a net positive to the economy to boot. 

Nor is it the "DREAM" Act, although few would argue that it's not a significant step towards the passage of the DREAM Act.  Many of the young people that would have qualified for actual status had the DREAM Act passed are now likely to benefit from this new policy.  But it's not circumventing Congress.

It's called prosecutorial discretion, and it's used by prosecutors in every courtroom in every state in this country every day.  In this case, it is a form of deferred action, wherein the government recognizes that many people are low enforcement priorities, and that the letter and spirit of the law are not served by allocating resources to remove certain people from the United States.

Although the policy took effect immediately, implementing regulations will likely take another 60 days.  In the meantime, here is what you need to know:

• Everyone's case is different. Some will qualify, some will not. Only a lawyer can tell you whether you qualify.
  
• You have to qualify before you can file an application under the new law.
  
• If you qualify, you can file even if you have an order of deportation.
  
• You have to have entered the US before you turned 16
• You cannot be more than 30 years old now
• You cannot have any serious misdemeanors or felonies
  
• You have to have more than 5 years of residence in the US
  
• You have to either be in school, graduated high school, have a GED, or have served in the military
  
• If you qualify, you can get a work permit, a social security number, a driver's license, and other benefits.
  
  

You will hear a lot of talk about this law. ONLY TAKE ADVICE FROM A LAWYER. Only a lawyer can help you determine whether you qualify, and what you need to file, and to which government agency. It can be dangerous to file an application if you do not qualify.


You can read Sec. Napolitano's memorandum here. (aqui por leerlo en español)