DREAM ACT vs. Deferred Action
Dream Act: Development, Relief and Education for Alien Minors (DREAM) Act
This bill would provide conditional permanent residency to certain illegal individuals of good moral character who graduate from U.S. high schools, arrived in the United States as minors, and lived in the country continuously for at least five years prior to the bill's enactment.
If they were to complete two years in the military or two years at a four-year institution of higher learning, they would obtain temporary residency for a six-year period. Within the six-year period, they may qualify for permanent residency if they have "acquired a degree from an institution of higher education in the United States or [have] completed at least 2 years, in good standing, in a program for a bachelor's degree or higher degree in the United States" or have "served in the armed services for at least 2 years and, if discharged, [have] received an honorable discharge".
Military enlistment contracts require an eight-year commitment, with active duty commitments typically between four and six years, but as low as two years. "Any alien whose permanent resident status is terminated... shall return to the immigration status the alien had immediately prior to receiving conditional permanent resident status under this Act." This bill would have included illegal immigrants as old as 35 years of age.
Deferred Action: Low Enforcement Priority
Deferred action is a discretionary determination to defer removal action of an individual as an act of prosecutorial discretion. Deferred action does not confer lawful status upon an individual. In addition, although an alien granted deferred action will not be considered to be accruing unlawful presence in the United States during the period deferred action is in effect, deferred action does not absolve individuals of any previous or subsequent periods of unlawful presence. Grants of deferred action will be issued in increments of two years. At the expiration of the two year period, the grant of deferred action can be renewed, pending a review of the individual case. Individuals may request deferred action if they meet the eligibility criteria as of June 15, 2012, namely:
1. Have come to the United States under the age of sixteen;
2. Have continuously resided in the United States for at least five years preceding the date of this memorandum and are present in the United States on the date of this memorandum;
3. Currently be in school, have graduated from high school, have obtained a general education development certificate, or are honorably discharged veterans of the Coast Guard or Armed Forces of the United States;
4. Have not been convicted of a felony offense, a significant misdemeanor offense, multiple misdemeanor offenses, or otherwise pose a threat to national security or public safety;
5. Not be above the age of thirty.
Individuals who are not in removal proceedings or who are subject to a final order of removal will must submit a request for a review of their case and submit supporting evidence to U.S. Citizenship and Immigration Services (USCIS). An individual subject to a final order of removal who can demonstrate that he or she meets the eligibility criteria can request a review of his or her case and receive deferred action for a period of two years, subject to renewal. All cases will be considered on an individualized basis.
The grant of deferred action under this new directive does not provide an individual with permanent lawful status or a pathway to obtaining permanent lawful status. Prior to the June 15, 2012 Memo, applying for deferred action is free, but it now appears that the DHS might require that filing fees be paid.
Under existing regulations, an individual who has been granted deferred action is eligible to receive employment authorization for the period of deferred action (2 years), provided he or she can demonstrate an economic necessity for employment. Employment authorization will need to be renewed. Deferred Action will also allow beneficiaries to apply for a Social Security number, a driver's license and higher education or military enrollment. Deferred action can be terminated at any time at the agency’s discretion or renewed by the agency.
All individuals must undergo biographic and biometric background checks prior to receiving an exercise of prosecutorial discretion. Individuals who have been convicted of any felony, a significant misdemeanor offense, three or more misdemeanor offenses (not occurring on the same date and not arising out of the same act, omission, or scheme of misconduct), or otherwise pose a threat to national security or public safety are not eligible to be considered for deferred action under the new process. Background checks involve checking biographic and biometric information provided by the individuals against a variety of databases maintained by DHS and other federal government agencies.
USCIS Regulations ICE and USCIS are set to develop and publicize protocols as of August 15, 2012. For individuals who are in removal proceedings before the Executive Office for Immigration Review, ICE will, announce the process by which qualified individuals may request a review of their case by August 15, 2012. For individuals who are in removal proceedings and have already been identified as meeting the eligibility criteria as part of ICE’s case-by-case review, ICE will immediately begin to offer deferred action for a period of two years, subject to renewal.
Gulf Coast Center for Law and Policy
Moving Forward Gulf Coast, Inc.