H1B Visa Lawyer Blog
MVP Law Group, P.A. makes available the information and materials in this forum for informational purposes only. The information is general in nature and does not constitute legal advice or any contractual obligations. Further, the use of this site, and the sending or receipt of this information, does not create an attorney-client relationship between us. Therefore, your communication with us through this forum will not be considered as privileged or confidential.
Question #1 – Marriage
Will my being married make me no longer eligible?
Answer #1
No, being married will not make you ineligible, as long as you satisfy all the eligibility requirements, you may submit an application for deferred action and a request for employment authorization if there is an economic necessity for employment.
Question #2 – Gaps
Will a brief interruption in the requirement to be in the U.S. continuously from June 15, 2007 to August 15, 2012 affect my eligibility for deferred action?
Answer #2
According to the guidance released by the USCIS, a brief, casual, and innocent absence from the United States will not interrupt your continuous residence. If you were absent from the United States for any period of time, your absence will be considered brief, casual, and innocent, if it was before August 15, 2012, and the absence was short and reasonably calculated to accomplish the purpose for the absence; the absence was not because of an order of exclusion, deportation, or removal, the absence was not because of an order of voluntary departure, or an administrative grant of voluntary departure before you were placed in exclusion, deportation, or removal proceedings; and the purpose of the absence and/or your actions while outside the United States were not contrary to law.
Question #3 – Diploma/GED
If I am now in High School but have three more years before I graduate, does this mean that since I have not yet graduated from High School or earned a GED that I won’t be able to be legalized?
Answer #3
According to the guidance released by the USCIS, you must be either: currently in school, graduated or received a certificate of completion from high school, obtained a general educational development certificate (GED), or an honorably discharged veteran of the Coast Guard or U.S. Armed Forces.
Additionally, it is important to note that this deferred action process will not result in lawful permanent status, or naturalization.
Question #4 – Asylum
I want to know if an asylum denial will prevent me from qualifying for the deferred action process?
Answer #4
An asylum denial should not prevent you from qualifying for the deferred action process; however, it is recommended that you speak with a qualified Immigration Attorney in order to fully discuss your eligibility.
Question #5 – Proof
What is the best acceptable evidence to establish my identity and the fact that I’ve been here?
Answer #5
As this is a new process, effective August 15, 2012, we have heard that passports, childhood immunization records and school records are acceptable evidence to establish identity and continuous residence in the United States.
Question #6 – Removal
What process should Individuals who are not in removal proceedings but who are subject to a final order of removal take in order to be eligible?
Answer #6
According to the guidance released by the USCIS, this process is open to any individual who can demonstrate he or she meets the guidelines for consideration, including those who have never been in removal proceedings as well as those in removal proceedings, with a final order, or with a voluntary departure order (as long as they are not in immigration detention). If you are not in immigration detention and want to affirmatively request consideration of deferred action for childhood arrivals, you must submit your request to USCIS – not ICE – pursuant to the procedures outlined below. If you are currently in immigration detention and believe you meet the guidelines you should not request consideration of deferred action from USCIS but should identify yourself to your detention officer or contact the ICE Office of the Public Advocate through the Office’s hotline at 1-888-351-4024 (staffed 9 a.m. – 5 p.m., Monday – Friday) or by email at EROPublicAdvocate@ice.dhs.gov.
Question #7 – Two Years
Why is it only for two years? What happens after two years? Am I taking a risk by coming out of the shadows?
Answer #7
Individuals who demonstrate that they meet the guidelines may request consideration of deferred action for childhood arrivals for a period of two years, subject to renewal, and may be eligible for employment authorization.
It is very important to understand that while the Deferred Action eligibility criteria may seem to be straight forward, immigration law is complicated and an application for Deferred Action can lead to consequences for a foreign national. Applicants should consider seeking the advice of a licensed Immigration Attorney before submitting an application for Deferred Action.
According to the guidance released by the USCIS, if a request for consideration of deferred action for childhood arrivals is denied, USCIS will apply its policy guidance governing the referral of cases to U.S. Immigration and Customs Enforcement (ICE) and the issuance of Notices to Appear (NTA). If a case does not involve a criminal offense, fraud, or a threat to national security or public safety, the case will not be referred to ICE for purposes of removal proceedings except if DHS determines there are exceptional circumstances.
Question #8 – Citizenship
Will the deferred action process lead to citizenship?
Answer #8
This process does not result in lawful status for persons who have received deferred action because deferring action is only a discretionary determination to defer removal action as an act of prosecutorial discretion and does not provide you with a lawful status. Also, keep in mind that deferred action does not confer lawful permanent resident status or a path to citizenship, only Congress acting through its legislative authority can confer these rights.
Question #9 – Stolen Identity
How will I be affected if my passport was stolen?
Answer #9
You will need to report that your passport was stolen, and if able, apply for a new passport.
Question #10 –Study Visa
Will the Deferred Action Policy have any impact on my study visa?
Answer #10
Have you reviewed all of the eligibility requirements? Specifically, did you enter without inspection before June 15, 2012 or did your lawful immigration status expire as of June 15, 2012. If you were in the United States on an F1 student visa and your student visa expired as of June 15, 2012, then you may be eligible for the deferred action process.
Even though this is very exciting news for our youth, it is extremely important that these young people get quality legal advice from lawyers and not ill-informed sources, since the young population is easier to be taken advantage of. You should only trust information from a reliable source, such as an official government website or reputable legal or charitable organizations; you may also consult with a qualified Immigration Attorney before requesting deferred action.
MVP Law Group would like to thank everyone who contributed a question or comment.
Our next “Immigration Q & A Forum” is scheduled for Friday, August 31, 2012!
Please remember to submit your questions/comments on our H1B Visa Lawyer blog!