Do I qualify for prosecutorial discretion? 5 Answers as of September 05, 2012I am 47 years old, entered the country legally with a B1 visa, and later changed status to H1B, which I held for over six years and expired in 2009. I applied for visa extension based on labor certification approval, but this extension has been repeatedly denied. A new appeal was submitted two months ago. My sister is a US citizen and also petitioned for me in 2010, but my country's waiting list is still in 2004. I have a master's degree from a prestigious US university, and I have been a college professor and director here in the US. I am an upstanding "citizen", have paid all my taxes and don't even have a speeding ticket. My wife and children are my dependents and were not born in US either. Now that the deferred action processed has been defined for students between 15 and 30, what can someone in my situation do? Is deferred action through prosecutorial discretion an option? Will a similar procedure be defined for these cases?
Joseph Law Firm | Jeff Joseph
You do not qualify for deferred action for childhood arrivals based on the DHS announcement, but deferred action in general has been around for decades and pre-exists the deferred action for childhood arrivals (DACA) policy. So, the short answer is, yes, you qualify. However, whether you should seek it is a different matter. It is generally an act of prosecutorial grace and discretion that is a last resort for someone who has exhausted all other possibilities.
Answer Applies to: Colorado
Immigration Attorneys, LLP | Robert R. Gard
You do not appear to qualify under DACA, though anybody may qualify for the "garden variety" version of prosecutorial discretion that has always existed so long as there have been prosecutors. If you were to be detained, it should be something that should be considered as partial relief, depending on the circumstances of your detention. As to the portion of your question concerning the potential for formal relief programs to be announced and implemented that might include your fact scenario, anything is possible (it's an election year).
Answer Applies to: Illinois
Law Offices of Grinberg and Segal | Alexander Segal
There is no specific deferred action plan for someone in your situation. Your children may be eligible for deferred action that was recently initiated. While deferred action is a form of prosecutorial, your situation would be completely different. Prosecutorial discretion in your case would be limited to the initiation of removal proceedings against you and/or the prosecution of any currently pending removal proceedings. It can also be used when an individual is under a final order of removal. Unfortunately, from the facts you provided, it does not appear prosecutorial discretion will help you.
Answer Applies to: New York