Immigration Reform

 Deferred Action for Childhood Arrivals (DACA)

 

Guidelines

You may request consideration of deferred action for childhood arrivals if you:

  1. Were under the age of 31 as of June 15, 2012;
  2. Came to the United States before reaching your 16th birthday;
  3. Have continuously resided in the United States since June 15, 2007, up to the present time;
  4. Were physically present in the United States on June 15, 2012, and at the time of making your request for consideration of deferred action with USCIS;
  5. Entered without inspection before June 15, 2012, or your lawful immigration status expired as of June 15, 2012;
  6. Are currently in school, have graduated or obtained a certificate of completion from high school, have obtained a general education development (GED) certificate, or are an honorably discharged veteran of the Coast Guard or Armed Forces of the United States; and
  7. Have not been convicted of a felony, significant misdemeanor, three or more other misdemeanors, and do not otherwise pose a threat to national security or public safety.

Age Requirements

Anyone requesting consideration for deferred action under this process must have been under 31 years old as of June 15, 2012. You must also be at least 15 years or older to request deferred action, unless you are currently in removal proceedings or have a final removal or voluntary departure order, as summarized in the table below:

 

Your situation  Required age
I have never been in removal proceedings, or my proceedings have been terminated before making my request. At least 15 years old at the time of submitting your request and not over 31 years of age as of June 15, 2012.
I am in removal proceedings, have a final removal order, or have a voluntary departure order, and I am not in immigration detention. Not above the age of 31 as of June 15, 2012, but you may be younger than 15 years old at the time you submit your request.

Education and Military Service Guidelines

Your school or military status at the time of requesting deferred action under this process Meet education or military service guidelines for deferred action under this process (Y/N)
  • I graduated from:Public or private high school; or
  • Secondary school.

Or

  • I have obtained a GED.

 

Yes

I am currently enrolled in school.See the Education section of the FAQs for a full explanation of who is considered currently in school.

Yes

I was in school but dropped out and did not graduate. I am not currently in school and am not an honorably discharged veteran of the Coast Guard or Armed Forces of the U.S.

No

I am an honorably discharged veteran of the Coast Guard or Armed Forces of the U.S.

Yes

National Security and Public Safety Guidelines

If you have been convicted of a felony offense, a significant misdemeanor offense, or three or more other misdemeanor offenses not occurring on the same date and not arising out of the same act, omission, or scheme of misconduct, or are otherwise deemed to pose a threat to national security or public safety, you will not be considered for deferred action under this process.

 

What is the difference between “significant misdemeanor”, “non-significant misdemeanor”, and “felony”?

 

Felony

A felony is a federal, state or local criminal offense punishable by imprisonment for a term exceeding one year.

 

Significant Misdemeanor 

A significant misdemeanor is a misdemeanor as defined by federal law (specifically, one for which the maximum term of imprisonment authorized is one year or less but greater than five days) and:

  1. Regardless of the sentence imposed, is an offense of domestic violence; sexual abuse or exploitation; burglary; unlawful possession or use of a firearm; drug distribution or trafficking; or, driving under the influence; or,
  2. If not an offense listed above, is one for which the individual was sentenced to time in custody of more than 90 days. The sentence must involve time to be served in custody, and therefore does not include a suspended sentence.

 

Non-significant Misdemeanor

A crime is considered a non-significant misdemeanor (maximum term of imprisonment is one year or less but greater than five days) if it:

  1. Is not an offense of domestic violence; sexual abuse or exploitation; burglary; unlawful possession or use of a firearm; drug distribution or trafficking; or, driving under the influence; and
  2. Is one for which the individual was sentenced to time in custody of 90 days or less.

 

A minor traffic offense will not be considered a misdemeanor for purposes of this process, but it is important to emphasize that driving under the influence is a significant misdemeanor regardless of the sentence imposed.  You can find detailed information in the National Security and Public Safety section of the Frequent Asked Questions.

Renewing Deferred Action Under This Process

Individuals whose case is deferred under this process will not be placed into removal proceedings or removed from the United States for a period of two years, unless terminated. You may request consideration for a two-year extension of deferred action through a process to be detailed in the future. As long as you were under the age of 31 on June 15, 2012, you may request a renewal even after turning 31.

 

PROVISIONAL WAIVERS – I601

 

A Tampa Provisional Waiver Immigration Attorney may be able to help your family now. Beginning March 4, 2013, certain immigrant visa applicants who are spouses, children and parents of U.S. citizens (immediate relatives) can apply for provisional unlawful presence waivers before they leave the United States. The provisional unlawful presence waiver process allows individuals, who only need a waiver of inadmissibility for unlawful presence, to apply for a waiver in the United States and before they depart for their immigrant visa interviews at a U.S. embassy or consulate abroad.

The new process is expected to shorten the time U.S. citizens are separated from their immediate relatives while those family members are obtaining immigrant visas to become lawful permanent residents of the United States.

Under current law, immediate relatives of U.S. citizens who are not eligible to adjust status in the United States must travel abroad and obtain an immigrant visa. Individuals who have accrued more than 180 days of unlawful presence while in the United States must obtain a waiver of inadmissibility to overcome the unlawful presence bars under section 212(a)(9)(B) of the Immigration and Nationality Act before they can return to the United States. Under the existing waiver process, which remains in effect, immediate relatives cannot apply for a waiver until after they have appeared for an immigrant visa interview abroad, and a Department of State (DOS) consular officer has determined that they are inadmissible to the United States. Immediate relatives of U.S. citizens who are eligible for the new provisional unlawful presence waiver can still choose to apply for a waiver using the existing process by filing a Form I-601, Application for Waiver of Grounds of Inadmissibility, after a DOS consular officer has determined that he or she is inadmissible to the United States.

What You Need to Know

The new provisional unlawful presence waiver process does not change the immigrant visa process. Even if your provisional unlawful presence waiver is approved, you are still required to depart the United States for your immigrant visa interview with a U.S. consular officer abroad.

 

If a provisional unlawful presence waiver is approved, it will only take effect after:

  1. You depart the United States and appear for your immigrant visa interview, and
  2. A DOS consular officer determines that you are otherwise admissible to the United States and eligible to receive an immigrant visa.  NOTE:  Do not depart until the National Visa Center (NVC) notifies you of your scheduled immigrant visa interview date and time at the designated U.S. Embassy or Consulate.

 

DOS may cancel your immigrant visa application process if you fail to appear at your interview.

 

If you are in removal proceedings, you are ineligible for a provisional unlawful presence waiver unless, at the time you file your Form I-601A, your proceedings are administratively closed and have not been put back on the Department of Justice, Executive Office for Immigration Review (EOIR) calendar to continue your removal proceedings.

Eligibility Requirements

To be eligible for a provisional unlawful presence waiver you must fulfill ALL of the following conditions:

  1. Be 17 years of age or older.
  2. Be an immediate relative of a U.S. citizen (not a preference category immigrant who has a visa available). An immediate relative is an individual who is the spouse, child or parent of a U.S. citizen.
  3. Have an approved Form I-130, Petition for Alien Relative, or Form I-360, Petition for Amerasian, Widow(er), or Special Immigrant.
  4. Have a pending immigrant visa case with DOS for the approved immediate relative petition and have paid the DOS immigrant visa processing fee.
  5. Be able to demonstrate that refusal of your admission to the United States will cause extreme hardship to your U.S. citizen spouse or parent.
  6. Be physically present in the United States to file your application for a provisional unlawful presence waiver and provide biometrics.
  7. Not have been scheduled for an immigrant visa interview by DOS before January 3, 2013.
  8. Meet all other requirements for the provisional unlawful presence waiver, as detailed in 8 CFR 212.7(e) and the Form I-601A and its instructions.

You are not eligible for a provisional unlawful presence waiver if any of the following conditions apply to you:

  1. You are subject to one or more grounds of inadmissibility other than unlawful presence.
  2. DOS initially acted before January 3, 2013, to schedule your Immigrant Visa (IV) interview for the approved immediate relative petition upon which your provisional unlawful presence waiver application is based, even if your immigrant visa interview has been canceled, you failed to appear for the interview, or your interview was rescheduled on or after Jan. 3, 2013.
      • Note: The date and time that you are scheduled to appear for your immigrant visa interview at the designated U.S. Embassy or Consulate is not the date USCIS will use to determine if you are eligible to file a Form I-601A. If DOS initially acted before January 3, 2013, to schedule your immigrant visa interview, you are not eligible to file a Form I-601A, even if you failed to appear for your interview or if you or DOS cancelled or rescheduled your interview for a date on or after January 3, 2013.
      • Instead, you may file a Form I-601, Application for Waiver of Grounds of Inadmissibility, from outside the United States after you have been interviewed for your immigrant visa, and the consular officer has found that you are inadmissible for a ground that may be waived.
  3. You are in removal proceedings that have not been administratively closed.
  4. At the time of filing, you are in removal proceedings that have been administratively closedbut have been placed back on the EOIR calendar to continue your removal proceedings.
  5. You do not meet one or more of the requirements, as outlined in the Form I-601A and its instructions.

Approval of Form I-601A

The USCIS National Benefits Center will adjudicate all Form I-601A applications.

 

Having a pending application for a provisional unlawful presence waiver or an approval of such a waiver will NOT:

 

    1. Grant you any benefit or protect you from being removed from the United States.
    2. Allow you to apply for interim immigration benefits such as work authorization or advance parole.
    3. Guarantee you will be issued an immigrant visa.
    4. Guarantee your admission into the United States by U.S. Customs and Border Protection.
    5. Give you a legal immigration status.
    6. Change the requirement that you must depart the United States in order to obtain an immigrant visa.  NOTE: Until your approved unlawful presence waiver takes full effect, USCIS may reopen or reconsider its decision on the Form I-601A at any time.

Reasons Your Provisional Waiver May Be Revoked

Your approved provisional unlawful presence waiver is automatically revoked if:

 

  1. DOS ends the immigrant visa application process.
  2. USCIS revokes the underlying approved immigrant visa petition (Form I-130 or Form I-360).
  3. The consular officer at the U.S. embassy or consulate determines that you are inadmissible on grounds of inadmissibility other than unlawful presence.
  4. You reenter or attempt to reenter the United States without being inspected and admitted or paroled, before or after your provisional unlawful presence waiver is approved or before your immigrant visa is issued.

Denial of Form I-601A or Withdrawal of Form I-601A

If USCIS denies your provisional unlawful presence waiver, you cannot file an administrative appeal or a motion to reopen or reconsider.

 

However, if your provisional unlawful presence waiver request is denied or if you withdraw your provisional unlawful presence waiver application before USCIS makes a final decision, you may file a new Form I-601A, in accordance with the form instructions and with the required fees. Your immigrant visa case must also be pending with DOS. In the case of a withdrawn Form I-601A, USCIS will not refund the filing fees because USCIS has already taken steps to adjudicate the case.

 

Alternatively, if USCIS denies your Form I-601A or you withdraw your Form I-601A before USCIS makes a final decision, you can apply for a traditional waiver using the existing process and Form I-601, Application for Waiver of Grounds of Inadmissibility.  You cannot apply for a Form I-601 until after you attend your immigrant visa interview and after DOS determines that you are subject to other grounds of inadmissibility.  If you decide to file Form I-601 after the interview abroad, you must file the Form I-601 in accordance with its instructions and with the required fees.

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