USCIS Releases Deferred Action Data and Updates Guidelines

More than 82,000 deferred action requests have been accepted by the USCIS since the program was implemented on August 15, 2012. Although only 29 requests have been completed as of September 13, 2012, 1,660 requests are awaiting review. More than 63,000 biometrics appointments have been scheduled so far.

Although the first few decisions were made rather quickly, officials still estimate that final determinations could take between four and six months.

The USCIS also recently updated its guidelines in response to additional inquiries regarding the policy and the procedure.

One of the new FAQs should give some measure of assurance to employers who may be asked for employment verification by deferred action applicants to support their request. It states that employers may, as they deem appropriate, give documentation verifying such employment.

Except when there is evidence of egregious violations of criminal statutes or widespread abuses, that information would not be shared with the Immigration and Customs Enforcement (ICE) for civil immigration enforcement purposes under the provision of Immigration and Nationality Act making the employment of unauthorized aliens unlawful.

Employment records can be submitted by deferred action applicants to prove physical presence on June 15, 2012 and continuous residence for five years beginning June 15, 2007.

The USCIS also addressed the question of whether one must document presence in the U.S. for every day or every month of the 5-year period. The updated guidelines state that the requestor must account for as much of the period as reasonably possible. Although direct evidence of presence for every day or month is not required, it would be helpful if there is evidence of residence during at least each year of the period. Gaps in the documentation may raise doubts as to continued residence and result in a request for evidence.

The requestor may submit two or more affidavits of third parties to explain gaps in his continued residence. Note that the affidavits cannot be used to establish the continuous residence requirement itself.

The USCIS also clarified item 9 of Form I-765 Application for Employment Authorization that is filed with a deferred action request. The item asks the applicant to list all Social Security numbers that the applicant has ever used. The USCIS explained that the applicant must list those Social Security numbers that were officially issued to him by the Social Security Administration.

The updated guidelines also clarify that if an individual travels outside of the United States after August 15, 2012, he would not be considered for deferred action as a childhood arrival. He must first be granted deferred action and applied for and received advance parole before he may travel outside of the U.S. Travels before August 15, 2012, on the other hand, will be assessed in terms of whether they were brief, casual and innocent or whether they break continuous residence.

If the deferred action request has been approved, the individual may apply for advance parole if he wants to be able to travel outside the United States. This is done by filing Form I-131 Application for Travel Document, and paying the filing fee of $360. The applicant must indicate the circumstances for which international travel is sought. Advance parole is generally granted only when the travel is for humanitarian, educational or employment purposes.

Meanwhile, as the deferred action program moves forward, the Obama administration has decided to exclude its recipients from the scope of the Affordable Care Act, like other undocumented immigrants. According to federal officials, individuals granted deferred action are not “lawfully present” residents under the health care reform law who would otherwise be eligible for Medicaid or children’s health insurance program.