February 2, 2015

USCIS on “lawful presence/legal status” – let’s call the whole thing off…

Posted by D.A. King at 2:36 pm - Email the author   Print This Post Print This Post  

The below note was emailed to me today from a friend/colleague in Washington DC. He is feeling my pain on the fact that Georgia is issuing drivers licenses to illegal aliens who Obama has granted deferred action on deportation.

“All they would have to do is look to the USCIS guidelines where the Obama administration explains that DACA “does not confer lawful permanent resident status” and that it “does not confer any lawful status”. If they don’t want to acknowledge that, they’re in deep denial.

Q6: If my case is deferred, am I in lawful status for the period of deferral?
A6: No. Although action on your case has been deferred and you do not accrue unlawful presence during the period of deferred action, deferred action does not confer any lawful status.

There is a significant difference between “unlawful presence” and “unlawful status.” Unlawful presence refers to a period an individual is present in the United States (1) without being admitted or paroled or (2) after the expiration of a period of stay authorized by the Department of Homeland Security (such as after the period of stay authorized by a visa has expired). Unlawful presence is relevant only with respect to determining whether the inadmissibility bars for unlawful presence, set forth in the Immigration and Nationality Act at Section 212(a)(9), apply to an individual if he or she departs the United States and subsequently seeks to re-enter. (These unlawful presence bars are commonly known as the 3- and 10-Year Bars.)

The fact that you are not accruing unlawful presence does not change whether you are in lawful status while you remain in the United States. Because you lack lawful status at the time DHS defers action in your case, you remain subject to all legal restrictions and prohibitions on individuals in unlawful status.

Q7: Does deferred action provide me with a path to permanent residence status or citizenship?
A7: No. Deferred action is a form of prosecutorial discretion that does not confer lawful permanent resident status or a path to citizenship. Only the Congress, acting through its legislative authority, can confer these rights.”