Regarding the education requirements, the USCIS guidelines state that the applicant must currently be in school, have graduated or obtained a certificate of completion from high school, or have obtained a general education development (GED) certificate.
USCIS goes into more detail in its Frequently Asked Questions:
Q2: Who is considered to be “currently in school” under the guidelines?
A2: To be considered “currently in school” under the guidelines, you must be enrolled in:
- a public or private elementary school, junior high or middle school, high school, or secondary school;
- an education, literacy, or career training program (including vocational training) that is designed to lead to placement in postsecondary education, job training, or employment and where you are working toward such placement; or
- an education program assisting students either in obtaining a regular high school diploma or its recognized equivalent under state law (including a certificate of completion, certificate of attendance, or alternate award), or in passing a General Educational Development (GED) exam or other equivalent state-authorized exam.
In assessing whether such an education, literacy or career training program not funded in whole or in part by federal or state grants is of demonstrated effectiveness, USCIS will consider the duration of the program’s existence; the program’s track record in assisting students in obtaining a regular high school diploma or its recognized equivalent, in passing a GED or other state-authorized exam, or in placing students in postsecondary education, job training, or employment; and other indicators of the program’s overall quality. For individuals seeking to demonstrate that they are “currently in school” through enrollment in such a program, the burden is on the requestor to show the program’s demonstrated effectiveness.
The "currently in school" criteria appears to be very broad. It can include literacy classes, career training, job training and an education program assisting students in passing the GED exam. Given the broad definition of "currently in school," an applicant who otherwise dropped out of school would be wise to enroll in some class, be it an English literacy class or some form of vocational training, in order to be able to check this box.
But even if an applicant can't say that they are currently in school, that may not necessarily be the end of the quest to acquire deferred action. As I posted earlier, the USCIS website appears to indicate that the agency will be on the lookout for candidates who may not meet all of the stated criteria, but who otherwise warrant the exercise of deferred action. Thus, if an alien does not have a diploma or GED, and is not currently enrolled in school, that does not mean that the alien cannot qualify for deferred action of some sort. It may mean that the applicant may need to pay up on mitigating factors in their life to convince USCIS to grant deferred action. Such factors could include a U.S. citizen child who requires medical treatment. It could include the need to stay in the United States to care for a sick parent or grandparent. It could include clear evidence of the applicant's good moral character.
The potential applicant, then, should consider all of the risks, all of the potential benefits, and all of the angles that can be played up, to decide whether it is worth paying the $465 filing fee to apply for deferred action under this program. Indeed, with the political climate the way it is, and with Republican presidential candidate Mitt Romney pledging to end the Deferred Action for Childhood Arrivals program, it may be worth it for an undocumented alien to take a shot, risk the filing fee, and try to obtain the benefit before a new Administration takes office.
By: William J. Kovatch, Jr.