1 USCIS-PM I.3
An alien who is subject to removal from the United States may request deferred action. However, there is no legal right to the exercise of prosecutorial discretion, and this includes deferred action, unless specifically provided by law or regulation.[1] USCIS will consider requests for deferred action in accordance with the law and pursuant to the Secretary’s authority to establish national immigration enforcement policies and priorities on a case-by-case basis. However, all requests for deferred action that are not specified in statute or regulation will be granted judiciously and only in compelling situations.[2] USCIS cannot prevent a removable alien from requesting deferred action; however, officers are limited to granting deferred action to only the cases authorized by the Secretary's authority to administer and enforce immigration law.[3]
Currently, DHS has specified regulations that provide a specific process for deferred action considerations. Even if provided by regulation, USCIS reviews requests for deferred action judiciously and on an individual case-by-case basis and in accordance with law.
Certain aliens who came to the United States under the age of 16 and meet other threshold guidelines,[4] may request deferred action by filing Consideration of Deferred Action for Childhood Arrivals (Form I-821D) consistent with law and applicable court orders.[5] Like all grants of deferred action, determinations to favorably exercise prosecutorial discretion to grant DACA are inherently discretionary and are made on an individual case-by-case determination based on the totality of the circumstances and thorough review of all background and security checks.[6] Even when the alien appears to meet all regulatory threshold criteria,[7] USCIS retains the discretion to assess the alien’s circumstances and to determine that any factor specific to that alien makes deferred action inappropriate.[8]
Certain victims of qualifying criminal activity who are helpful in the investigation or prosecution of the crime to which he or she was subject can apply for U nonimmigrant status by filing a Petition for U Nonimmigrant Status (Form I-918). Each fiscal year, USCIS can grant U nonimmigrant status to a maximum of 10,000 aliens.[9] If an alien is not granted U nonimmigrant status solely due to the numerical cap, USCIS places that alien on a waiting list.[10] Under existing regulations, USCIS grants deferred action or parole to aliens and qualifying family members while they are on the waiting list.[11] However, USCIS may remove the alien and his or her qualifying family members from the waiting list and terminate deferred action or parole as a matter of discretion,[12] for reasons including, but not limited to, conduct that was not disclosed to USCIS relating to his or her petition for U nonimmigrant status or for misrepresentations of material facts or other removable offenses. Aliens with a pending petition for U nonimmigrant status may be subject to removal, depending on the unique circumstances of each individual case consistent with law.[13]
Certain victims of severe forms of trafficking in persons who assist law enforcement in the investigation or prosecution of trafficking and who would suffer extreme hardship involving unusual and severe harm if they were removed from the United States, among other requirements, can apply for T nonimmigrant status by filing an Application for T Nonimmigrant Status (Form I-914). If USCIS determines the alien’s application for T nonimmigrant status is bona fide, USCIS may consider the alien as well as qualifying family members for deferred action.[14] USCIS retains full discretion to assess the individual circumstances and to determine whether deferred action is appropriate based on the totality of facts and circumstances.
While no regulation specifically identifies A-3 and G-5 visa holders as aliens who can request deferred action, a statute calls for their inclusion in categories under victims of criminal activity or trafficking, if applicable.[15] A-3 and G-5 visa holders are nonimmigrant attendants, servants, or personal employees of ambassadors, diplomats, consular officers, foreign government officials, or international organization officers. USCIS may exercise prosecutorial discretion favorably to grant deferred action to these aliens on an individual case-by-case basis if he or she has filed litigation against their employer for violation of the terms of his or her employment contract or conditions related to human trafficking and similar criminal violations.[16]
Approved Violence Against Women Act (VAWA) self-petitioners and his or her derivative beneficiaries may be considered for deferred action on an individual case-by-case basis. USCIS retains the discretion to assess the alien’s circumstances and to determine that any factor specific to that alien makes deferred action appropriate.
USCIS may still, in its discretion, review deferred action requests from removable aliens even if not provided for by statute or regulation. However, USCIS must review requests not provided by regulation judiciously, as a grant of deferred action is an extraordinary use of prosecutorial discretion. USCIS must take care when reviewing requests not provided by regulation, as to not circumvent the express will of Congress. Non-regulatory requests before USCIS must be compelling and scrutinized in accordance with law.[17]
U.S. Armed Services Members and Applicable Family Members [Reserved]
[^ 1] See Guidance on Deferred Action, DHS Memorandum, issued April 4, 2025.
[^ 2] See Guidance on Deferred Action, DHS Memorandum, issued April 4, 2025.
[^ 3] See the Homeland Security Act of 2002, Pub. L. 107-296 (PDF), 116 Stat. 2135 (November 25, 2002).
[^ 4] See 8 CFR 236.22(b).
[^ 5] See 8 CFR 236.21.
[^ 6] See 8 CFR 236.22(c).
[^ 7] See 8 CFR 236.22(b).
[^ 8] See 8 CFR 236.22(c).
[^ 9] See 8 CFR 214.14(d)(1).
[^ 10] See Volume 3, Humanitarian Protection and Parole, Part C, Victims of Crimes, Chapter 6, Waiting List [3 USCIS-PM C.6] for more information on eligibility for placement on the U nonimmigrant status waiting list and related grants of deferred action.
[^ 11] See 8 CFR 214.14(d)(2).
[^ 12] See 8 CFR 214.14(d)(3).
[^ 13] See 8 CFR 214.14(c)(1)(ii).
[^ 14] See 8 CFR 214.205(e). See Volume 3, Humanitarian Protection and Parole, Part B, Victims of Trafficking, Chapter 6, Bona Fide Determinations [3 USCIS-PM B.6] for more information on the bona fide determination process for applicants for T nonimmigrant status and related grants of deferred action. The bona fide determination process generally applies to applications for T nonimmigrant status filed on or after August 28, 2024, when the T Final Rule went into effect. However, if an application was pending as of that date and additional evidence is required to establish eligibility for principal T nonimmigrant status, USCIS conducts a bona fide review.
[^ 15] See William Wilberforce Trafficking Victims Protection Reauthorization (TVPR) Act of 2008, Pub. L. 110-457 (December 23, 2008).
[^ 16] See William Wilberforce Trafficking Victims Protection Reauthorization (TVPR) Act of 2008, Pub. L. 110-457 (December 23, 2008).
[^ 17] Congress explicitly provided for deferred action in certain limited and unique circumstances. See, for example, National Defense Authorization Act for Fiscal Year 2004, Pub. L. No. 108-136 (PDF), section 1703(c)(1)(A), (c)(2), 117 Stat. 1693, 1694-95 (November 24, 2003) and INA 204(a)(1)(D)(i)(II), INA 204(a)(1)(D)(i)(IV). The fact that Congress expressly authorized deferred action in those circumstances only underscores how extraordinary deferred action is in other circumstances. See Cf. Youngstown Sheet & Tube Co. v Sawyer, 343 U.S. 579, 637 (1952) (Jackson, J., concurring) (“When the President takes measures incompatible with the expressed or implied will of Congress, his power is at its lowest ebb.”).