That being said, let's first consider exactly what deferred action is. Deferred action is a decision by the U.S. Government not to seek the removal or deportation of an alien who otherwise is present in the United States in violation of U.S. immigration law. That could be because the person entered illegally, or entered on a valid visa and overstayed, or entered on a visa that did not include work authorization, but worked anyway. Department of Homeland Security regulations, 8 CFR 274a.12(c)(14), permit an alien granted deferred action to apply for employment authorization with a showing of economic necessity.
As an act of executive discretion, the President has broad authority to grant deferred action. It could, for example, be based on humanitarian grounds.
Through the Deferred Action for Childhood Arrivals program, the President has defined a certain group of individuals to whom he would like to grant deferred action. They are people who meet the following criteria:
(From the USCIS Guidelines).
This does not mean that if you do not meet all of the criteria that you cannot receive deferred action.
Consider the guidance USCIS places on its Frequently Asked Questions page.
These two answers appear to indicate that although a person may not meet the technical requirements of the Deferred Action for Childhood Arrivals, USCIS may still consider whether that person should receive deferred action on some other basis.
The question is why the person does not meet the requirements. In some instances, the person who asks has come to the United States when they were sixteen. In other instances, they have not been here five years. But in all other respects, the person meets the qualifications.
To answer whether a person should apply for deferred action merits some more careful consideration of the specific situation that the person finds themselves in. In one instance, when I applied for a gentleman who was already in removal proceedings, but who did not meet all of the technical requirements, I got a telephone call from USCIS stating that we should apply through these new procedures. Of course, that particular person had no criminal record, was currently in a U.S. high school and by all accounts is a person of good moral character. The fact that he is in removal proceedings gave us the incentive to try anything we could.
In this regard, so long as the applicant is aware of the risks, and accepts that paying the filing fee is not a guarantee of receiving the benefit, it may be worth it to try. The choice should be made, however, after considering all of the circumstances, and discussing the risks and potential benefits with a knowledgeable immigration lawyer.
By: William J. Kovatch, Jr.