Mark A Ivener, A Law Corporation

USCIS Submits Emergency Requests to OMB for Deferred Action-Related Forms; ICE Agents File Lawsuit

U.S. Citizenship and Immigration Services (USCIS) has submitted information collection requests to the Office of Management and Budget (OMB) for “emergency” consideration related to the new deferred action program.

The Form I-821D, Consideration of Deferred Action for Childhood Arrivals, will be used for those who are considered for relief from removal from the United States or from being placed into removal proceedings as part of the deferred action for childhood arrivals process. Those who submit requests with USCIS and demonstrate that they meet the threshold guidelines may have removal action in their case deferred for a period of two years, subject to renewal (if not terminated), based on an individualized, case-by-case assessment of the individual’s equities.

USCIS estimates that 1,041,300 respondents will use this form and that it will take 2 hours and 45 minutes to complete. The OMB notice for this form (PDF), which includes instructions on submitting comments. Comments will be accepted until September 17, 2012.

USCIS also has submitted an emergency request to the OMB for a revision of Form I-765, Application for Employment Authorization. The OMB notice for this form (PDF), which includes instructions on submitting comments. Comments will be accepted until September 17, 2012.

Individuals requesting consideration of deferred action for childhood arrivals must submit:

  • Form I-821D, Consideration of Deferred Action for Childhood Arrivals
  • Form I-765, Application for Employment Authorization (with accompanying fees; the total is $465, including the biometrics fee and issuance of a secure employment authorization document); and
  • I-765WS Worksheet (to establish economic need for employment) (PDF).
  • USCIS recently developed a series of related resources, including a website. Related announcements are available here, here, and here.

Meanwhile, a group of 10 U.S. Immigration and Customs Enforcement (ICE) agents have filed a lawsuit against the new deferred action directive on undocumented childhood arrivals. The agents argue that the new program forces them to violate immigration law.

Kansas Secretary of State Kris Kobach, an advisor to Mitt Romney’s presidential campaign, is representing the agents in the lawsuit filed in federal court in Dallas, Texas, against Janet Napolitano, Secretary of Homeland Security, and John Morton, ICE Director. The lawsuit is receiving financial support from NumbersUSA. “This Directive not only circumvents Congress, it also infringes on the plaintiffs’ ability to fulfill the oath they made to uphold the laws of this country. The plaintiffs seek to prevent law enforcement officers from being forced to either violate federal law if they comply with the Directive or risk adverse employment action if they disobey the unlawful orders of the DHS Secretary,” Secretary Kobach said.

Also, Texas Governor Rick Perry sent a letter (PDF) to Greg Abbott, Texas Attorney General, asserting that Secretary Napolitano’s action was “a slap in the face to the rule of law and our Constitutional framework of separated powers” and “unilaterally undermine[s] the law.” Governor Perry said he was writing to ensure that “all Texas agencies understand that Secretary Napolitano’s actions confer absolutely no legal status whatsoever” to anyone who qualifies for deferred action. “In Texas, our legislature has passed laws that reflect the policy choices that they believe are right for Texas. The secretary’s directive does not undermine or change our state laws, or any federal laws that apply within the State of Texas,” he said.

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Mark A. Ivener, A Law Corporation, a nationally recognized law firm, has successfully assisted hundreds of clients in immigration matters.