Next Best Thing to the DREAM Act: Prosecutorial Discretion for Undocumented Students

It’s not an amnesty, and it’s not a law: But the announcement today by Secretary of Homeland Security Janet Napolitano is big news nonetheless.

Effective immediately, undocumented immigrants under age 30 who were brought to the U.S. as young children, present no risk to national security or public safety, and meet various educational and other criteria will be considered for relief from removal and protected from placement in removal proceedings.

What’s more, they will be eligible for what’s known as “deferred action” — a sort of limbo status that comes with benefits — for two years, subject to renewal. One of the benefits of deferred action is, in this case, eligibility to apply for employment authorization (a work permit).

This dovetails with DHS efforts to focus its enforcement resources away from people who are a low priority — and toward the removal of people who pose a national security or public safety risk, including immigrants convicted of crimes, violent criminals, felons, and repeat immigration law offenders.

The specific criteria for deferred action eligibility include that the person:

  1. came to the United States under the age of 16
  2. has continuously resided in the United States for at least the preceding five years and are present in the United States on the date of the Napolitano memorandum
  3. is currently in school, have graduated from high school, have obtained a general education development certificate, or are honorably discharged veterans of the Coast Guard or Armed Forces of the United States
  4. has not been convicted of a felony offense, a significant misdemeanor offense, multiple misdemeanor offenses, or otherwise poses a threat to national security or public safety, and
  5. is not above the age of 30.

To apply, you will need to prove through verifiable documentation that you meet these criteria for deferred action. Better not rush to apply right away, however.  U.S. Citizenship and Immigration Services (USCIS) and Immigration and Customs Enforement (ICE) say they will begin implementation of the application processes within 60 days. In the meantime, consult an attorney or see USCIS’s website (, ICE’s website (, or DHS’s website (

If you are already in removal (deportation) proceedings and have been identified as meeting the eligibility criteria and offered an exercise of discretion as part of ICE’s ongoing case-by-case review, ICE may immediately offer you deferred action.