The Department of Homeland Security announced Friday that it will offer a kind of administrative relief known as “deferred action” to young immigrants unlawfully in the US who are between 16 and 30. An estimated 800,000 people may qualify.
To qualify, an individual must:
—Have come to the United States under the age of 16;
—Have continuously resided in the United States for a least five years;
—Be currently in school, have graduated from high school, have obtained a general education development certificate, or be an honorably discharged veteran;
—Have not been convicted of certain crimes or otherwise pose a threat to national security or public safety; and
—Be under the age of 30.
People who think they qualify will apply to the U.S. Citizenship and Immigration Services for work authorization. A grant of deferred action lasts two years and can be renewed.
The new administration policy offers half a loaf to undocumented students and others. It will allow them to work legally, but they still won’t have legal status. Deferred action is not a path to citizenship.
Not everyone who applies under the policy will necessarily get deferred action. Much will depend on how the new policy is implemented. For example, the Department of Homeland Security (DHS) memo announcing the new policy states that “no individual should receive deferred action under this memorandum unless they first pass a background check and requests for relief pursuant to this memorandum are to be decided on a case by case basis. DHS cannot provide any assurance that relief will be granted in all cases.”
Moreover, technically this memo is just an extension of a prosecutorial discretion memo DHS issued a year ago. It doesn’t require immigration officials to offer deferred action to people who meet the eligibility requirements; it just says immigration officers should consider doing so.
Moreover, even work authorization isn’t automatic. The DHS memo states that the immigration agency “shall accept applications to determine whether these individuals qualify for work authorization during this period of deferred action.
I worry that the announcement will be implemented more stingily than the administration would like. We saw that happen with the DHS prosecutorial discretion memo issued last June. A year later, only 2 percent of people in deportation proceedings have been offered relief. I hope this policy change will be implemented more generously.
Stephen Yale-Loehr teaches immigration law at Cornell Law School.