Department Of Homeland Security Decides to Cease Deportation of Some Individuals Through Prosecutorial Discretion

Contributed by Sara Zorich

On June 15, 2012, the Department of Homeland Security (DHS) announced that it will exercise prosecutorial discretion on a case-by-case basis regarding whether to cease deportation proceedings of certain undocumented aliens under the age of thirty. The DHS announced that an individual who can demonstrate the following will be eligible for an exercise of discretion deferral of deportation for a two-year period:

  1. Came to the United States under the age of sixteen;
  2. Have continuously resided in the United States for a least five years preceding June 15, 2012 and are present in the United States as of that date;
  3. 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;
  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 over age 30 as of June 15, 2012.

DHS has indicated that deferred action is not amnesty, is not immunity, is not permanent, is not legal status and is not a pathway to a green card or citizenship. The directive is a stop-gap to attempt to allow Congress time to pass alternate forms of immigration reform.

If the individual meets the above criteria and is granted the deferred action, they will be eligible to apply for an employment authorization document enabling them to work in the United States if they can prove “an economic necessity for employment.”  The employment eligibility will be granted for a two-year period subject to extension if their deferred action is extended.

At this time DHS and U.S. Citizenship and Immigration Services (USCIS) have not issued any procedural guidelines for those eligible for deferred action as the agencies have 60 days in which to create a process for the requests.  Thus, employers should be aware that no one has been grated deferred action at this time nor have any employment authorization documents based on deferred action been issued.  We will keep you updated as to further developments.