Early Analysis of New Deferred Action Policy

We await further guidance from the Administration regarding the New Deferred Action Policy for DREAMers announced on June 15.  One thing is clear:  this is both a defensive and an affirmative policy. 

DREAMers who are in removal proceedings can use the new policy to defer their removal (‘Defensive’).  DREAMers who are not in removal proceedings can also take advantage of the policy, which gives them protection from entering into removal proceedings (‘Affirmative’).  USCIS has stated that they will begin accepting affirmative applications by mid-August.

What about the eligibility criteria?  We certainly need further clarification on this.  Here are my early questions:

What is the effective date of the policy?

While this guidance takes effect immediately, USCIS and ICE expect to begin implementation of the application processes within sixty days. Do not apply now –  this application process is not yet available. If you apply early, your application will be rejected.   SOURCE

What is the minimum age to apply?  

The announcement states that a DREAMer can be “currently in school.”  Could 14-15 year old (or younger?) DREAMers who are full time students apply and qualify?  This is a tricky question.  We know you must have come to the United States under the age of sixteen.  The answer for this will basically depend on whether the DREAMer is an Affirmative or a Defensive applicant.  The relevant USCIS web page does provide an answer to this.  It states, “and, for those individuals who make a request to USCIS and are not subject to a final order of removal, must be 15 years old or older.”  So, if you are affirmatively seeking relief, you need to be at least 15 years of age.  If you are in removal but not yet subject to a final order of removal, you would also have to be at least 15 years of age.  DREAMers who are using this relief as a defensive measure while subject to a final order of removal can apparently be less than 15 years of age to qualify.  SOURCE  

What is the maximum age to apply?

USCIS had a conference call recently and indicated that, to qualify, you have to be under 31 on the date the memo was issued (June 15, 2012).

Do You Have to be in School Right Now?

The answer to this relates once again to the third eligibility prong:  “Are currently 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.”  This appears to be a series of “either…or” requirements.  If you meet one of the following, you would appear to qualify.  It does not appear that a DREAMers would need to satisfy more than one of those requirements.  For example, General Educational Development (or GED) tests are a group of five subject tests which, when passed, certify that the taker has American or Canadian high school-level academic skills.  It appears to be an either/or proposition for high school graduates or DREAMers with a GED:  you can qualify if you have a high school diploma, or a GED.  But, you would not need both.  What if you are a DREAMer but had dropped out of high school by June 15, 2012?  This question is a bit unclear.  We might need further guidance on this issue from USCIS.  However, I think it would be advisable for any DREAMers who did drop out of high school to sign up and obtain your GED rapidly, with the hope of applying for deferred action.

What is a significant misdemeanor offense? 

A significant misdemeanor is a federal, state, or local criminal offense punishable by no more than one year of imprisonment or even no imprisonment that involves: violence, threats, or assault, including domestic violence; sexual abuse or exploitation; burglary, larceny, or fraud; driving under the influence of alcohol or drugs; obstruction of justice or bribery; unlawful flight from arrest, prosecution, or the scene of an accident; unlawful possession or use of a firearm; drug distribution or trafficking; or unlawful possession of drugs.  SOURCE