Work Authorization and Temporary Relief for Undocumented Children

Children of undocumented aliens come to the United States, usually at a tender age, without any intent to violate the law. They attend elementary and high school, some even graduating at the top of their class, and many become active members of the community. However, since they often do not have lawful immigration status themselves, they are unable to work legally in this country and they live in constant fear of being deported to a land they never considered home.

In a dramatic but long awaited move, President Obama announced recently that his administration would grant these individuals a form of immigration relief.

The new policy would grant deferred action to young undocumented immigrants who came to the United States as children. For a period of two years, these individuals would be allowed to remain in the United States without fear of being removed and, if they demonstrate economic necessity, would be given employment authorization.

An estimated 800,000 immigrants would be affected by this new policy, which achieves some of the goals of the DREAM Act (Development, Relief and Education for Alien Minors Act) that was defeated in Congress last year.

The policy is not an amnesty and does not offer a pathway to permanent residency or citizenship, which only Congress has the power to do. Deferred action is an act of prosecutorial discretion whereby the government agrees to defer removal action against an individual. It does not give positive legal status but is only a temporary reprieve from removal.

The June 15, 2012 Memorandum from the Department of Homeland Security listed the criteria to be met to be considered for the relief.  To be eligible, the individual must have come to the United States under the age of sixteen (16) years; must be present in the United States prior to June 15, 2012 and must have continually resided in the U.S. for at least five (5) years prior to June 15, 2012; is currently in school, graduated from high school, obtained a general education development (GED) certificate, or honorably discharged from Coast Guard or the Armed Forces of the United States; not have been convicted of a felony offense, a significant misdemeanor offense, multiple misdemeanor offenses, or otherwise be a threat to national security or public safety; and not be above thirty (30) years old.

If granted, deferred action is valid for a period of two years and may be renewed. Guidance outlining the procedures has yet to be released, but the USCIS has stated that the policy will allow individuals to submit a request for a review of their eligibility and supporting documents. Deferred action will also be available to those already in removal proceedings.

Documentation to prove some of the eligibility criteria (coming into the U.S. before age 16, 5 years of residence, and physical presence as of June 15, 2012) includes financial, medical, school, employment and military records.

Individuals with certain types of criminal conviction will not only be denied deferred action because of ineligibility but in fact also be considered priorities for removal. Those who commit fraud in their deferred action request will also be referred to enforcement authorities.

Executive authority to grant administrative relief lies in Section 103(a) of the Immigration and Nationality Act which places the enforcement of immigration laws with the Secretary of Homeland Security. The executive branch has granted deferred action since the 1970s and federal courts have recognized such power.

An example of deferred action was the deferred departure granted to nurses, mostly from the Philippines, in December 1977. Hundreds, if not thousands, of nurses faced the threat of deportation. Through the efforts of the NAFL-FNG, a Filipino nursing group, which I represented as attorney, nurses were given a temporary relief of up to 3 years. Most of the nurses eventually obtained their green card.

Republican lawmakers, who are quick to cry backdoor amnesty every time President Obama wields his executive power in matters of immigration law, have predictably criticized the new policy as evidence of the president’s refusal to deal with Congress. Actually, in 2010, the DREAM Act was passed by the Democrat-controlled House of Representatives but rejected by the mostly Republican Senate. The bill was first introduced in Congress in 2001 and has been reintroduced every year since.

It will be recalled that more than one year ago after the DREAM Act’s demise, twenty-two Democratic Senators wrote a letter to the president urging him to grant deferred action to DREAM Act-eligible students.

The future of the policy is not guaranteed given that the United States may have a new executive by year-end. GOP candidate Mitt Romney has refused to say whether he would repeal the policy, apparently careful not to alienate the growing immigrant population.

Not all undocumented immigrants who were brought to the U.S. at a young age will be able to, or should, request the relief. If possible, one must seek legal advice before doing so since there are risks associated with the act of presenting oneself to the immigration authorities.

Be that as it may, the option of finally being allowed to contribute productively to society, albeit in a limited measure, should be favorably considered by anyone who meets the requirements. After all, regardless of who occupies the White House, one can always hope that our government will do the right thing.