FAQ - Exercising Prosecutorial Discretion with Respect to Individuals Who Came to the United States as Children

1. Where can I find this policy?

On 15 June 2012, Secretary of Homeland Security, Janet Napolitano, issued a Memorandum to US Customs and Border Protection, US Citizenship and Immigration Services, and US Immigration and Customs Enforcement. The text of the Memorandum is found at:

2. What is "deferred action?"

"Deferred action" is the term used to describe when the Department of Homeland Security agrees not to initiate removal (deportation) proceedings against an individual or not to execute an order of removal.

3. What are the requirements to qualify for "deferred action" under the new policy?

There are five (5) requirements:

1. You must have arrived in the United States before you turned sixteen (16) years old.
2. You must have continuously resided in the United States for at least five (5) years immediately preceding, and have been physically present in the United States on, 15 June 2012.
3. You must be currently in school, have graduated from high school, or have obtained a General Education Degree (GED).
4. You must not have a conviction for a felony offense, a substantial misdemeanor offense, or multiple misdemeanor offenses.
5. You must not be above the age of thirty (30) years old.

4. What are some benefits offered under the new policy?

Individuals who qualify for "deferred action" will not be removed from the United States for an initial period of two (2) years, and will have the opportunity to apply for employment authorization. Employment authorization often enables one to apply for a Social Security number and, in some states, a state identification and/or driver's license.

5. What are some benefits not offered under the new policy?

This "deferred action" policy is not an amnesty or immunity. It is not a permanent status. It does not permit one to petition other family members. Those who do qualify cannot vote and are still subject to removal if they apply fraudulently and/or commit certain removable offenses, such as specific crimes.

6. I think I qualify! Now what should I do?

If you believe you qualify, you are encouraged to contact a competent immigration attorney. Unfortunately, our communities are laden with dishonest immigration consultants, often referred to as notarios. Avoid wasting time and resources; please ensure you speak with and ultimately hire a licensed attorney whose practice is dedicated to immigration law, and who is and will be familiar with the procedures by which their clients can request "deferred action."

Begin gathering documentation supporting your eligibility for "deferred action." It will be helpful for your attorney for you to have the following to demonstrate entry before age sixteen (16) and five (5) years of residence in the United States: financial records, medical records, academic records, employment records, etc. You will also need to present your school transcript, report card(s), diploma, and/or GED certificate.

We invite you to call the phone number our office, Lewis & Kappes, PC, has established specifically to accept calls regarding this new policy: 317-639-4874. Our team of attorneys and immigration professionals is very excited about our clients navigate this process for the best, most efficient, result.

7. I think I may qualify, but I am concerned about my age, ability to prove physical presence, and/or criminal record. Now what should I do?

If you believe you may qualify, and have questions regarding your eligibility, you should not miss this opportunity to decipher whether you can benefit from this policy; you are always encouraged to contact a competent immigration attorney.

Do not "fudge" your request for "deferred action" to fit the established criteria. An individual who knowingly makes a misrepresentation or fails to disclose facts in an effort to receive "deferred action" will be treated as an immigration enforcement priority, subject to criminal prosecution and/or removal from the United States.

However, even if you do not qualify for "deferred action," you may still qualify for an exercise of prosecutorial discretion under a Memorandum that was issued on 15 June 2011. Do not lose hope!