Changes Urged in Processing Deferred Action Requests

Deferred action is a form of relief granted to aliens for humanitarian reasons and which allows them to temporarily remain in the United States.

This type of relief is usually given to those who can demonstrate compelling circumstances and whose removal is not a priority of the government. It may be requested as a pre-adjudication relief by an applicant for an immigration benefit, such as widows of U.S. citizens and qualified victims of a crime or abuse. It may also be requested by individuals for humanitarian concerns whether or not they have a pending immigration petition or application. Examples of this latter type are those filed by individuals with extreme medical cases.

Among the factors that the USCIS considers are the likelihood of the alien’s removal, the presence of sympathetic factors, likelihood of a large amount of adverse publicity given the sympathetic factors, desirability of the alien’s continued presence for law enforcement purposes, and whether the individual is a member of a class that is given high enforcement priority, such as terrorists and drug traffickers.

Deferred action is a discretionary administrative act. It is not subject to judicial review and neither may it be granted by an immigration judge. The request is reviewed by the district director who makes a recommendation to the regional director, who in turn issues the decision.

Deferred action is not and does not lead to permanent resident status. However, the individual requesting it may apply for employment authorization. If granted, deferred action is usually valid for one to two years.

A recent analysis by the Citizenship and Immigration Services Ombudsman of deferred action requests revealed that there is currently no standardized national procedure for the handling of these requests. The public, according to the Ombudsman, also does not have clear and consistent information on the requirements for submitting a request and on what to expect after submission.

The review found that most local offices follow an informal standard process, and that there is no nationwide system for acknowledging receipt of these requests. Typically, an application for deferred action is made by submitting a request to a local USCIS office in person or by mail, but there is no standardized application form. There is currently no fee charged for making this request.

The Ombudsman also found that there is no mechanism to keep adjudications within a certain timeframe and that decisions have been issued from a range of two weeks to 60 days, while some requests remained indefinitely pending. The study showed that some offices do not issue the template letter confirming receipt of the request, while some offices do not issue any written acknowledgement at all. It was also reported that obtaining status updates on pending requests can be very difficult.

These findings led the Ombudsman on July 11, 2011 to make the following recommendations in order to make the processing of deferred action requests transparent and consistent.

First, the USCIS must use public information describing deferred action and the procedures for requesting it.

Second, it must establish procedures for accepting and processing deferred action requests to promote consistency and to assist local offices in responding to increases in demand.

Third, it must inventory all pending requests to verify that each request received a confirmation of receipt with estimated processing timeframes and USCIS contact information.

Fourth, it must consistently track data related to requests and make available statistics identifying the number of requests received and the number of requests approved and denied.

The CIS Ombudsman is the official is mandated by law to identify areas in which people encounter problems while dealing with the USCIS, and to propose changes to the administrative practices of the agency to minimize these problems.