USCIS To Reverse Decision, Continue Accepting Applications for Deferred Action
On September 19, 2019, the U.S. Department of Homeland Security disclosed to members of the Oversight & Reform Committee that its sub-agency, U.S. Citizenship and Immigration Services, would continue “consideration of non-military deferred action requests on a discretionary, case-by-case basis, except as otherwise required by an applicable statute, regulation, or court order.” The decision reportedly came at the discretion of Acting DHS Secretary Kevin McAleenan. This news is surprising, as USCIS had announced on August 23, 2019 that it would end consideration of non-military Deferred Action applications. That day, USCIS announced that:
USCIS field offices will no longer consider non-military requests for deferred action, to instead focus agency resources on faithfully administering our nation's lawful immigration system. This redirection of agency resources does not affect DACA or other deferred action requests processed at USCIS service centers under other policies, regulations, or court orders (such as VAWA deferred action and deferred action related to the U nonimmigrant status waiting list). As deferred action is a type of prosecutorial discretion used to delay removal from the United States, USCIS will generally defer to the DHS component agency responsible for removing individuals from the United States - U.S. Immigration and Customs Enforcement (ICE) - to make most non-DACA, non-military deferred action determinations.
USCIS stated on August 23 that it had made an internal decision to terminate Deferred Action application consideration on August 7, 2019. No public notice was ever published. Nonetheless, the September 19, 2019 announcement now clarifies that certain non-citizens may pursue Deferred Action. The Committee on Oversight and Reform states that:
DHS’s announcement came a week after devastating testimony from witnesses at an emergency hearing on September 11, 2019. At the same hearing, the Trump Administration blocked employees from answering basic questions about who decided on the policy, why the policy was implemented, or whether the White House was involved.
Deferred Action, according to USCIS, is “a discretionary determination to defer a deportation of an individual as an act of prosecutorial discretion.” It may be granted by USCIS or an Immigration Judge. Deferred Action does not grant an applicant permanent immigration status and it is not a pathway to U.S. citizenship. It does, however, give the individual some comfort in knowing that DHS will not imminently deport the individual, “deferring” the opportunity to deport someone who has no lawful immigration status on a temporary basis.
It is important to note that this decision from DHS does not apply to Deferred Action for Childhood Arrivals, or “DACA,” but only to the more traditional form of Deferred Action. Common reasons DHS grants Deferred Action include severe medical issues of the applicant’s U.S. citizen family members, substantial economic need for employment, and humanitarian considerations involving the applicant. Existing regulations allow an applicant who is granted Deferred Action to obtain employment authorization based on proof of her “economic necessity for employment.”