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Arrest Record Can Thwart 'Deferred Action' Request

Undocumented Immigrants Should Consult an Attorney Before Filing to USCIS


Arrest Record Can Thwart 'Deferred Action' Request
Marisol Zequeira, Florida immigration attorney.

To take advantage of the Obama administration’s “deferred action” DREAM Act alternative, young undocumented immigrants must clear a criminal background check.

Immigrants who have a criminal history should seriously consider consulting with a qualified immigration attorney before filing a deferred action application.

“Because you are making yourself known to immigration authorities, you should be particularly careful if you have had a brush with the law,” says Marisol Zequeira, an immigration attorney in Stuart, Fla.

A serious offense such as a felony conviction will disqualify an immigrant from consideration. Also, a “significant misdemeanor” or three or more other misdemeanors could be disqualifying factors.

“A felony is defined as an offense that is punishable for a term exceeding a year,” says Zequeira, who has practiced immigration law in Florida for 15 years. “A significant misdemeanor is defined as an offense for which the maximum term of imprisonment is one year or less but greater than five days and meets the following criteria regardless of the sentence imposed: domestic violence offense, sexual abuse or exploitation, burglary, firearms charge, drug distribution or trafficking, and driving under the influence.”

Minor traffic violations are not grounds for disqualification. Expunged or juvenile convictions will not automatically disqualify an applicant. However, these will be determined on a case-by-case basis by immigration authorities.

“Potential applicants should discuss their juvenile and criminal  record with an immigration attorney before submitting an application to U.S. Citizenship and Immigration Services,” Zequeira says. “Above all, I would emphasize that this is a discretionary program. The government will extend no guarantees or provide a permanent status. If you are found to be a threat to national security or public safety, you could be referred to ICE (Immigration and Customs Enforcement) for removal.”

USCIS began accepting deferred action applications from the children of undocumented immigrants on Aug. 15, 2012 as part of President Obama's DREAM Act alternative plan to allow them to avoid deportation.

The Obama administration thinks as many as 1.8 million undocumented youths might apply. The government will consider even those immigrants who are in removal proceedings.

Immigrants who are in removal proceedings (not in immigration detention) may also qualify for deferred action. So also may immigrants who have received voluntary departure or those who have been deported in absentia. Immigrants who are detained should contact the ICE/detention officer to inquire about their eligibility to receive deferred action.

To apply, immigrants must file forms I-821D, I-765 and I-765WS and pay a total fee of $465. With approval, immigrants become eligible for work authorization for two years, with the eligibility for renewals if the program continues. Applicants should file their requests with the nearest USCIS Regional Service Center.

The government is waiving the fee requirements for some immigrants who are considered hardship cases. The fee exception requirements are:

    Those immigrants who are under age 18, homeless, in foster care, or otherwise lacking parental or family support. Those with an income less than 150% of the U.S. poverty guidelines. Those who, at the time of the request, have accumulated over $25,000 in debts during the past 12 months as a result of unreimbursed medical expenses for the applicant or applicant’s immediate family.

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