On Friday, the USCIS gave additional details of the Deferred Action for Childhood Arrivals (“DACA”) process. While the new guidance certainly clarified some areas, it also raised some additional problems and pitfalls that could affect potential DREAMer applicants if they are not first properly informed. Given the perceived simplicity of the eligibility criteria, the question “Do I need an attorney for deferred action?” is frequently asked. In response, here are five reasons why you should have an attorney assist you with your application for deferred action:
- You only get one chance –if USCIS denies your request for DACA consideration, there is no appeal and you have no second chance to present additional documentation. The USCIS has made it very clear that they will not review their discretionary determinations except in very limited circumstances where there was an incorrect address or mailing issue. Because of this it is very important to put your best foot forward and ensure that your application is thoroughly prepared and complete at time of filing with the USCIS.
- Severe Consequences –the USCIS has confirmed that information provided to them in these applications is protected from disclosure to U.S. Immigration and Customs Enforcement (ICE) and U.S. Customs and Border Protection (CBP) for the purposes of immigration enforcement proceedings. However, if you meet the criteria for the issuance of a Notice To Appear or a referral to ICE under the criteria set forth in USCIS’s Notice to Appear guidance (www.USCIS.gov/NTA), you could have your application for deferred action denied and be placed in removal proceedings. Add to this the unpredictability of USCIS rule changes and potential executive changes following the election in November, you want to make sure of all the facts before proceeding with an application.
- Criminal Convictions – the intersection between immigration and criminal law has always been a problematic area but with deferred action, the consequences of getting it wrong could be deportation. If you have been convicted of a felony offense, a significant misdemeanor offense or three or more other misdemeanor offenses (not occurring on same date/arising from same act) you will likely not qualify for deferred action under the new process. Therefore, if you have had ANY prior contact with law enforcement, it is critical that you first have your record analyzed by an immigration attorney before deciding whether to apply for deferred action.
- Continuous presence – while a brief, casual and innocent absence from the United States before August 15, 2012 will not interrupt your continuous residence, what constitutes “a brief, casual, and innocent absence” can be complicated and require further analysis and additional evidence including sworn affidavits from people with direct personal knowledge of the events and circumstances. Please note – after August 15, 2012, if you travel outside of the United States, you will not be considered for deferred action under the DACA process.
- Travel abroad – If you are granted deferred action, you may be eligible to apply for authorization to travel outside of the United States (advance parole), but only when there are USCIS approved reasons for travel such as specifically defined humanitarian, educational or employment purposes. Because any travel abroad can put you in a potentially precarious position when you attempt to re-enter – it is strongly advisable to consult with an attorney before starting this application process.
Having a good lawyer review your application will help ensure you are fully informed as to the potential consequences of applying and will enable you to put forward the best possible application. If you think you qualify for DACA, you would be advised to seek professional immigration counsel to ensure your application meets eligibility criteria. Should you wish to review your options, we invite you to contact us at VisaLaw@Wolfsdorf.com or call our office at 1-800-VISA LAW.