Last week, the Department of Homeland Security (DHS) announced that it would put guidelines in place across all immigration agencies to ensure that its enforcement priorities are focused on removing persons who are most dangerous to the country. 

In a letter to Senator Dick Durbin (D-IL) and other senators who had requested that DHS consider deferring the removal of all DREAM Act eligible students, DHS announced that it would not categorically defer removal, but that persons who were not high priority targets for removal would have the opportunity to request prosecutorial discretion on a case by case basis.  Low priority cases—previously identified in a prosecutorial discretion memo issued by Immigration and Customs Enforcement Director John Morton on June 17—include persons who are not criminals and have been in the country since childhood, have strong community ties, are veterans or relatives of persons in the armed services, are caregivers, have serious health issues, are victims of crime or otherwise have a strong basis for remaining in the United States.  

DHS also announced the creation of a joint committee with the Department of Justice that will review nearly 300,000 cases currently in removal proceedings and determine which cases are low priority and can be administratively closed.  In addition, agency-wide guidance will be issued to ICE, USCIS and CBP officers to ensure that they appropriately exercise discretion when determining whether a low priority case should be referred to immigration court.  

While we applaud the step we also want immigrants to know that the Obama administration announcement is not an amnesty, it is not about granting legal status, and is not something that you can sign up for.

The announcements do not provide any way to “apply” for a work permit or “EAD” nor is there a new way to apply to remain in the United States. The change announced is not about giving people work permits or legal status. The announcement applies only to cases already in the system, ensuring that low priority cases do not continue to clog up an already overburdened immigration court system.

It is therefore important that you do not believe anyone who tells you they can sign you up for a work permit (Employment Authorization Document or “EAD”) or get you legal status based on this announcement! Anyone who says that is not to be trusted.

There is no “safe” way to turn yourself in to immigration and there is no guarantee that your case will be considered “low priority.” Any person who comes into contact with immigration authorities may be arrested, detained or even removed.

Only a qualified immigration attorney can evaluate your case and tell your about your rights.

Do not seek legal advice from an immigration consultant.

Even if a friend, neighbor or coworker encourages you to act, do not try to contact immigration authorities or fall for a scam. At this time, there is no application to fill out, no form that can be filed, no filing fee that can be paid and no guidance from immigration authorities at all as to how the review of cases will happen. Eventually, as the government decides how to proceed, that information should be available from official government websites, such as USCIS.gov and USICE.gov, or the website of the American Immigration Lawyers Association, www.aila.org. To locate an immigration attorney, including searches by location, practice area and language skills, you can find an online directory of AILA attorneys at www.ailalawyer.com.

The announcement does not mean that all “low priority” cases will automatically be granted a work permit.

The administration’s announcement said that if a case is administratively closed, the individual will be able to apply for a work permit (employment authorization document or “EAD”). But there are no details, guidelines or instructions on how to apply for an EAD, or who will be eligible for an EAD. Unless you are already eligible for an EAD under existing regulations and guidelines, you should not go to immigration and ask for an EAD, or apply to immigration for an EAD or you risk losing several hundred dollars in filing fees. 

The factors for determining low priority cases will likely be based on the June 17, 2011 memo on prosecutorial discretion. However, just because a case seems to fall into one or more of those categories, does not automatically mean that it will be considered “low priority.” The people reviewing the cases will be looking at the “totality of the circumstances” and each file will be reviewed on a case-by-case basis. It is unclear how different factors will be considered and weighed. Given that there are approximately 300,000 cases pending, it is also unclear when a particular case might be reviewed.

Administrative closure applies only to an individual whose case is already before the immigration judge. When a case is administratively closed, it means that the case is no longer active and no action will be taken, including no future hearings, unless and until either the government or the noncitizen asks for the case to be made active again. A person whose case is administratively closed is still in removal proceedings. Administrative closure is not legal status. It is simply a temporary suspension of an immigration court case. Cases that are deemed to be of low priority will either (1) be administratively closed, or (2) no enforcement action will be taken. This is not an amnesty or legal status, but rather a temporary decision not to use limited government resources to deport low priority individuals.

Individuals whose cases are administratively closed will be eligible to apply for a work permit (or EAD). An EAD means that an individual can legally work in the United States and obtain a social security number for work. In some states, having an EAD also means you can apply for a drivers license or other identification). An EAD does not give a person legal status — it is just temporary permission to work.

We hope there will be more steps like this in the immediate future and we call again for passage of the DREAM Act.