Author: New York Immigration Lawyer Alena Shautsova
About a month ago USCIS announced that it would stop the Deferred action program for non-military members. The public reacted by convincing USCIS that the deferred action program should be restored. Several weeks later, USCIS agreed.
What is Deferred Action?
Deferred action is a government’s act to accommodate an individual even though he/she does not have a recourse under the current Immigration law. As a rule, deferred action happens in a form of a parole. It can be parole in place; parole instead of a visa/status. Often, deferred action is granted to a person who is in removal proceedings. But USCIS also practices an affirmative deferred action: the one for individuals who are not in removal proceedings. Government regulations characterize deferred action as “an act of administrative convenience to the government which gives some cases lower priority.” 8 C.F.R. § 274a.12(c)(14).
Who can apply for Deferred Action?
Anyone present in the US with severe medical conditions, when the treatment for those conditions is unavailable in their home countries, may ask USCIS to grant them deferred action in the form of parole which will allow them to stay in the US without accumulating unlawful presence. Also, persons whose countries were affected by serious natural disaster, may likewise apply for deferred action. During the validity of the deferred action, the person is considered to be safe from removal/deportation.
How to Apply for Deferred Action?
Apparently, there is no centralized, nation-wide procedure for the deferred action. A person would have to submit the request to the local USCIS office. A front desk would take these applications and provide a receipt stamp. An applicant must be out of status in order to file for deferred action. Applicants will be fingerprinted. There is no application form and there is no application fee. An applicant will have to present evidence of the need to stay in the US, for medical deferred action it would be affidavits, medical records, doctor’s reports. To file, a person typically also would need to present:
- Signed written request
- Form G325A
- Copies of passport, visa, and birth certificate
- 2 passport-style photos
Beneficiaries of deferred action can apply for employment authorization. A deferred action may be granted to the person and his/her immediate relatives. A deferred action would typically be granted for a period of two years.
In 2011, the USCIS ombudsman recommended that USCIS adopts unified procedures for adjudicating deferred actions requests. In 2012 USCIS issued a memo U.S. Citizenship & Immigration Servs., Standard Operating Procedures for Handling Deferred Action Requests at USCIS Field Offices 3 n.1 (Mar. 7, 2012) (“USCIS Standard Operating Procedures”). However, the procedure itself still remains largely unknown and varies from office to office.