by Matthew J. Snyder

The U.S. Department of Homeland Security (DHS) recently issued a directive that allows illegal aliens who satisfy certain criteria to temporarily defer their deportation and seek employment in the United States. Deferments are for two years and are renewable. While in deferment status, aliens may seek work authorization from the U.S. Citizenship and Immigration Services (USCIS). Let’s review the directive, the requirements for deferment, and how the new order affects employers.

Background

On June 15, DHS Secretary Janet Napolitano issued a memo titled “Exercising Prosecutorial Discretion with Respect to Individuals Who Came to the United States as Children.” The directive, which took effect immediately, doesn’t confer any substantive right or citizenship status on affected individuals. Rather, it targets younger aliens who, according to Napolitano, “lacked the intent to violate the law” and “were brought to this country as children and know only this country as home.” In the memo, Napolitano states:

[Our nation's immigration laws are not] designed to remove productive young people to countries where they may not have lived or even speak the language. Indeed, many of these young people have already contributed to our country in significant ways.

Napolitano recommends that the country’s immigration efforts concentrate on individuals who truly are deserving of deportation ― e.g., aliens convicted of crimes, violent criminals, felons, and repeat immigration law offenders ― rather than younger aliens whom she considers “low priority cases.” In a public address given the same day as the release of Napolitano’s memo, President Barack Obama praised the department’s directive, stating:

It makes no sense to expel talented young people, who, for all intents and purposes, are Americans ― they’ve been raised as Americans; understand themselves to be part of this country ― to expel these young people whom want to staff our labs, or start new businesses, or defend our country.

President Obama went on to reaffirm the limitations of the directive: “This is not amnesty, this is not immunity. This is not a path to citizenship. It’s not a permanent fix. This is a temporary stopgap measure that lets us focus our resources wisely while giving a degree of relief and hope to talented, driven, patriotic young people.”

Requirements for deferment

To be eligible for deferment, an alien must satisfy five requirements. Specifically, he must:

• Have come to the United States before turning 16;
• Have resided continuously in the United States for at least five years prior to June 15, 2012, and be present in the United States as of that date;
• Be enrolled in school, have graduated from high school, have obtained a general education development (GED) certificate, or be an honorably discharged veteran of the U.S. Coast Guard or armed forces;
• Not have been convicted of a felony offense, a significant misdemeanor offense, or multiple misdemeanor offenses or otherwise pose a threat to national security or public safety; and
• Be no older than 30.

Individuals also must pass a background check.

Deferment decisions are discretionary and can be terminated at any time. Deferments are for two years and may be renewed. The memo doesn’t discuss a limitation on renewals, so for now, it appears that they may be renewed indefinitely. U.S. Immigration and Customs Enforcement (ICE) and the USCIS will determine eligibility for deferment. Both departments are expected to have implemented application processes by mid-August. The DHS estimates that the directive will affect approximately 800,000 illegal aliens.

Work authorizations

Once an individual is granted deferment, he may apply for work authorization through the USCIS. He must file a Form I-765 (Application for Employment Authorization). Under existing regulations, authorization will be granted only if the alien can demonstrate an “economic necessity for employment,” which critics say isn’t a difficult threshold to meet. Authorization lasts as long as the period of deferment. If the deferment period is renewed, the alien must refile Form I-765 to renew his work authorization.

Impact on employers

Depending on the nature of the employment, some employers could see an increase in employment applications from aliens age 30 and younger with deferred status. Employers affected by the DHS directive should confirm that an alien applying for work has received work authorization from the USCIS by requesting the appropriate documentation. Documentation should be requested every two years in conjunction with the alien’s deferment and work authorization renewal obligations.

Bottom line

At least in theory, the DHS directive will make it easier for aliens to live and work in this country. As a result, more aliens may attempt to enter the workforce. You should be prepared for that and ensure that any alien applying for work has received the appropriate work authorization (and it is timely renewed) before making an offer of employment.

A full copy of the directive is available at www.dhs.gov/xlibrary/assets/s1-exercising-prosecutorial-discretion- individuals-who-came-to-us-as-children.pdf. A list of answers to frequently asked questions about the new directive is available on the USCIS’s website at www.uscis.gov. Just log on and enter “deferred action process for young people who are low enforcement priorities” in the search window.

Matthew Snyder is an attorney with Sulloway & Hollis in Concord, New Hampshire. He joined the firm as an associate in 2010 and serves clients on a wide range of matters in both the business and litigation departments. He may be contacted at msnyder@sulloway.com