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Obama's New Deferred Action Policy: What it Means for Your Employees

July 2012

By: Ryan M. Helgeson, Esq.

On June 15, 2012, President Obama and Janet Napolitano, the Secretary of the United States Citizenship and Immigration Services ("USCIS"), announced a new policy with regard to enforcement of deportation against certain young people who came to the United States as children. Additionally, on June 29, 2012, Minneapolis became the first city to formally endorse the President's policy. The new policy is designed to grant "deferred action" to individuals who:

  • came to the United States under the age of sixteen;
  • is not above the age of thirty;
  • has continuously resided in the United States for at least five years and is currently present here;
  • is currently in school, has graduated from high school, has a G.E.D., or is an honorably discharged veteran;
  • has not been convicted of certain offences and does not pose a threat to national security.

Individuals who meet these criteria are eligible, on a case-by-case basis, to receive deferred action, meaning that the Department of Homeland Security will not pursue enforcement against a person for a specific period of time, in this case for two years. Deferred action does not confer lawful immigration status or alter existing status, but it may be renewed. NOTE: an application process is not currently available. USCIS has until August 14, 2012 to develop the necessary process; until then, any applications will be rejected. Individuals may call a USCIS hotline at 1-800-375-5283 for more information.

Importantly, under the new policy, these individuals will be eligible to receive employment authorization, if they can demonstrate an economic necessity for their employment. The employment authorization will be issued for up to two years and may be renewed, upon application, if further deferred action is granted. Individuals cannot begin work until they have received their Employment Authorization Document. Additionally, if employers become aware of the undocumented status of any of their employees because of this announcement, the employer can be considered to have knowingly continued to employ an authorized individual and is subject to fines and other penalties.

Questions? Call Attorney Ryan Helgeson of Wessels Sherman's St. Charles, Illinois office: 630-377-1554 or email him at [email protected].