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Update on Deferred Action for DREAMers

| Feb 7, 2024 | Firm News

From today’s USCIS Stakeholder Meeting with Director of USCIS, Alejandro Mayorkas; Director of ICE, John Morton; and, Commissioner of CBP, Aguilar

What is deferred action?
Deferred action is a discretionary determination to defer removal of a person as an act of prosecutorial discretion.

Initial points from Director Alejandro Mayorkas:

1) Period to accept affirmative requests has not yet opened.  At this time any requests will be rejected.

2) Be mindful of notario fraud and the unauthorized practice of law.

3) USCIS has established resources to field questions – its website: and 800 number: (800) 375-5283.


1) The government will not issue Notices to Appear (NTAs) in removal proceedings to those who meet the eligibility criteria.

2) For those in removal proceedings, those who meet the criteria are to be granted deferred action on an individual basis.

3) USCIS will consider affirmative requests from those not in proceedings who request prosecutorial discretion.

Eligbility Criteria:

  • Be 15-30 years old, and have entered before age 16
  • Have been present in the U.S. for 5 years as of June 15, 2012
  • Have maintained continuous residence
  • Have not been convicted of one serious crime or multiple minor crimes
  • Be currently enrolled in high school, graduated or have a GED, or have been honorably discharged as a veteran of the U.S. Coast Guard or Armed Forces

U.S. Citizenship and Immigration Services (USCIS)

For those affirmatively seeking deferred action – if they are denied because they do not meet the eligibility or do not pass a background check, they will not automatically be put into proceedings.  ICE will follow the NTA process as established on its website.

USCIS will ensure and set up protocols for supervisory review in order to uphold the spirit and letter of the pronouncement and to maintain consistency in adjudication of the requests.

There will be no appeals process.

If granted deferred action under this new process, dependants will not receive deferred action as a matter of course.  They will have to qualify on their own merit as outlined in the eligible criteria published on June 15.

Travel Authorization
There is no answer yet as to whether travel may be authorized.  USCIS will answer soon.

Immigration and Customs Enforcement (ICE)

John Morton, Director of ICE

ICE has info on its website, and 800 number: (888) 352-4024

1) ICE’s role is to work with CBP.   Qualified individuals are not to be removed or placed in proceedings.

2) If in removal proceedings and an applicant qualifies, ICE will grant deferred action, end removal proceedings, and refer the person to USCIS for employment authorization.  Review will be on a case-by-case basis.

3) ICE will outline the process where people are in proceedings so that they may identify themselves to ICE for consideration (Note: CBP urges people to apply at USCIS).

4) Will aggressively investigate notario fraud.

If granted deferred action, the person will need to request biometrics for an EAD.

Customs and Border Protection (CBP)

Commissioner Aguilar

If CBP encounters a person at the border, it will interview the person and will need to detain the person to continue the interview process.  Will run a background check, which includes a biographic and biometric against all available databases.  Processing will follow, then the person is released.

He urges stakeholders to direct applicants to USCIS and not turn themselves in to ICE or CBP.

Pertinent Q&A:

What are serious misdemeanors?  I’ve copied the DHS Frequently Asked Questions here:

Refer to the FAQs – note that DUIs are included for deferred action purposes as a serious misdemeanor.  A stakeholder urged USCIS to reconsider including DUIs as they are not enumerated for Temporary Protected Status (TPS), for example, as serious misdemeanors.

*From FAQs:

“Are individuals with a conviction for a felony offense, a significant misdemeanor offense, or multiple misdemeanors eligible for an exercise of prosecutorial discretion under this new process?
No. Individuals who 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 are not eligible to be considered for deferred action under the new process.

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

What offenses qualify as a “significant misdemeanor”?
A significant misdemeanor is a federal, state, or local criminal offense punishable by no more than one year of imprisonment or even no imprisonment that involves: violence, threats, or assault, including domestic violence; sexual abuse or exploitation; burglary, larceny, or fraud; driving under the influence of alcohol or drugs; obstruction of justice or bribery; unlawful flight from arrest, prosecution, or the scene of an accident; unlawful possession or use of a firearm; drug distribution or trafficking; or unlawful possession of drugs.

How many non-significant misdemeanors constitute “multiple misdemeanors” making an individual ineligible for an exercise of prosecutorial discretion under this new process?
An individual who is not convicted of a significant misdemeanor but is convicted of three or more other misdemeanors not occurring on the same day and not arising out of the same act, omission, or scheme of misconduct is not eligible to be considered for deferred action under this new process.”