New Details on “Deferred Action” Immigration Policy

July 17, 2012

The Obama administration has announced a new immigration policy called “deferred action.”  Under this directive, individuals who demonstrate that they meet the indicated criteria will be eligible for an exercise of prosecutorial discretion, called deferred action.

To be eligible, a person must apply and: have come to the U.S. under the age of sixteen; have continuously resided in the U.S. for a least five years preceding June 15 and have been present in the U.S. on June 15; be currently in school, have graduated from high school, have obtained a general education development certificate, or have been honorably discharged from the Coast Guard or Armed Forces of the U.S.; 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; and not be above the age of thirty.

The policy does not confer a path to citizenship or lawful permanent resident status.

NSBA directed a number of questions to the director of the U.S. Citizenship and Immigration Services (USCIS), Alejandro Mayorkas, about how this policy will work in practice. According to the USCIS, the agency will begin accepting applications for deferred action on August 15, 2012.  USCIS is planning to issue an EAD (employment authorization document) to those whose deferred action application is accepted provided he or she can demonstrate “an economic necessity for employment.” Economic necessity is from the applicant’s perspective.  They are still working out how to define “economic necessity.”

Employers may employ those with a deferred action EAD – no changes will be made to the I-9 or E-verify process.  Deferred action and the associated EAD will last two years and deferred action recipients will be able to reapply.  If their status lapses, they will no longer be eligible to work so presumably they must be terminated.  Employer penalties are as under current law.

The issue of when employers may be subject to civil or criminal penalties for failing to hire someone who has received deferred action is still unanswered.  For example, it is unclear whether an employer can lawfully take into account the “temporary” nature of the work authorization when deciding among candidates.  The EEOC could, for example, determine that doing so constitutes unlawful discrimination on the basis of national origin.

To read the USCIS FAQs please click here.