Deferred Action for Parents of U.S. Citizens & LPR’s

Update: Due to a federal court order, USCIS will not begin accepting requests for DAPA nor the expansion of DACA on February 18 as originally planned and has suspended implementation of Deferred Action for Parents of Americans and Lawful Permanent Residents. The court’s temporary injunction, issued February 16, does not affect the existing DACA. Individuals may continue to come forward and request an initial grant of DACA or renewal of DACA under the original guidelines. Please check back for updates.

Deferred Action for Parents of U.S. Citizens & LPR’s

After questionnaires are complete, the attorney needs to be sure the person is really eligible and doesn’t have any red flags. The following is for instructional purposes, but also a checklist so the attorney can carefully go over this particular case. Given the importance of this step there will be a list of red flags that can be identified early on in the representation, e.g. criminal history, prior marriage to different USC, etc. There will be some instructions on what to do if certain red flags come up, including backing out of the case if warranted.

Deferred Action for Parents (DAPA) for Parents of US Citizens and Lawful Permanent Residents/Green Card Holders will be eligible to apply for deferred action for 3 years

  • Effective Date 5/20/2015.
  • By USCIS website
  • Parents of U.S. citizens and lawful permanent residents
    • of any age
    • who have been continuously present in the US since 1/1/10,
    • who pass background checks
  • USCIS will more than likely revamp the I-821D to provide for the expansion of DACA and to include using the form for DAPA as well
  • The requirement regarding paying taxes will pose the biggest issue for some people.
  • Attorneys will have to work with trusted, experienced CPA’s or bookkeepers.
  • RED FLAG: Attorneys must review taxes already filed to check for errors. Many tax preparers fraudulently list dependents, list credits or deductibles that do not truly apply just to get the taxpayer a bigger refund to reduce the amount of taxes owed. If this is the case, those taxes MUST BE amended!
  • Applicants who have not filed taxes can back file through an experienced CPA or bookkeeper by getting a Tax Payer Identification Number (ITIN)
  • Note that they will be using their new term of art for those with a criminal background. Those with a significant misdemeanor will be denied. Needless to say, those with felonies need not apply at all.
  • A significant misdemeanor is defined by USCIS as:
    For the purposes of this process, 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 that meets the following criteria:
    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.
    The time in custody does not include any time served beyond the sentence for the criminal offense based on a state or local law enforcement agency honoring a detainer issued by U.S. Immigration and Customs Enforcement (ICE). Notwithstanding the above, the decision whether to defer action in a particular case is an individualized, discretionary one that is made taking into account the totality of the circumstances. Therefore, the absence of the criminal history outlined above, or its presence, is not necessarily determinative, but is a factor to be considered in the unreviewable exercise of discretion. DHS retains the discretion to determine that an individual does not warrant deferred action on the basis of a single criminal offense for which the individual was sentenced to time in custody of 90 days or less.
  • In addition to the probable I821D, applicants will also need to file an I765 and the I765WS. USCIS may tag on to the C33 for purposes of Question 16 the EAD Eligibility Category
  • Red Flag: Attorneys should use the questionnaire to vet out those who may have had proceedings in the past or who have ever filed for benefits that somehow produced an A# to avoid duplicate A# creation which slows down the application process.
  • Red Flag: Those with removal orders can apply so long as they weren’t actually removed and returned after removal since USCIS has determined that such scenarios breaks the period of continuous physical presence. Note that applicants can apply even if they have removal orders, those who were given voluntary departure but never left and those who were subject to expedited removal at the border or refused entry prior to 2001.

Effect of the Executive Action on Removal Proceedings

  • Pending Proceedings: There will be a review of cases currently under proceedings to see who is prima facie eligible for the relief stated in this program, and those cases will be closed.
  • Effective Date Unknown
  • Via Unknown
  • Attorneys with clients in removal proceedings should review each case to vet those who may be eligible. If so, a Motion to Continue may be warranted citing attorney prep time for the moment. This will help the Court while they scramble to do their own review
  • Once the application process begins, Attorneys can file a Motion to Terminate or Admin Close (it is unclear which will apply. At the moment, there is no consistency on which courts terminate and which admin close. We are hoping that this will change and that there will be a clear rule to be applied in all courts)
  • Practice Pointer: For those that do get terminated, if there are later placed back in proceedings, a new Notice to Appear (“NTA”) must be issued. This is called “repapering” Attorneys can analyze which cases can later be “repapered” in order to recommence proceedings for those that have a good cancellation case but did not have the time in with their prior case. For example, if your client was placed in proceedings but on the date the NTA was issued, your client only had 7 years of continuous physical presence, but now has 10 years (and otherwise qualifies for cancellation), a new Notice to Appear would help that client now apply for cancellation.
  • Practice Pointer: the courts will be reviewing for all cases that can be closed under the Executive Order which includes those who can now apply for an PIP, I601A, not just DACA and DAPA. Immigration Court Reforms. There will be a package of immigration court reforms that will include qualification of accredited representatives and ineffective assistance of counsel issues.
  • Effective Date Unknown
  • Via Unknown
  • EOIR has been more aggressive lately in investigating accredited representatives and claims of ineffective assistance of counsel
  • Expect those on the List of Free or Low Cost Legal Services to get requests for proof that they are in fact providing those services.
  • Many consults reports that they have called everyone on the list only to be told that no free or low cost services are being provided at all.

Expansion of Parole in Place

  • PIP will be expanded to include families of individuals trying to enlist in the armed forces.
  • Effective Date Unknown
  • Via Unknown
  • Our Super Genius Margaret Stock ( reported that this is the simplest of all!
  • The US citizen need only apply and by showing proof the PIP process can commence for family members.
  • Simply applying means they can register to take the ASVAB at any MEP.
  • Those in this scenario should contact a recruiter immediately.While encouraging enlistment in the military, notice the rule only requires an application.
  • The citizen need not follow through and actually enlist.
  • Some may apply and later be denied entry for various reasons such as failure to pass the ASVAB, criminal , medical or mental issues. But their families will still benefit from PIP