While this Policy Manual part describes general deferred action procedures by USCIS, each deferred action request is considered on an individual case-by-case basis based on the totality of the circumstances and limits the positive exercising of prosecutorial discretion judiciously.

Deferred action is an extraordinary form of relief and should be considered a last resort for the alien making the request. Prosecutorial discretion and deferred action must never be used to circumvent the express will of Congress. If DHS previously considered the alien for a discretionary immigration benefit or relief expressly authorized by statute but declined to grant it, USCIS should cautiously consider whether a positive exercise of deferred action would circumvent the express will of Congress.

USCIS rigorously enforces our nation’s immigration laws and does not exempt classes or categories of removable aliens from potential enforcement action, including the issuance of Notices to Appear (NTA). Unless required by law, USCIS exercises prosecutorial discretion in very limited and compelling instances after considering all USCIS and DHS information and guidance, the individual facts presented, and any DHS interest implicated, including federal court litigation-related considerations and deconfliction with law enforcement priorities or other agencies. USCIS retains discretion to determine that a unique case merits a favorable exercise of prosecutorial discretion to forego enforcement action when appropriate and lawful.

Deferred action requests are only considered in extraordinary and compelling situations. In general, the common hardships that any alien facing removal may experience or endure will be insufficient to establish that a favorable exercise of prosecutorial discretion is warranted. Historically, deferred action has been used as a remedy of last resort. If Congress did not specifically provide relief from removal, officers should exercise his or her discretion favorably in limited situations in the totality of the circumstances.

A. Threshold Criteria

Upon proper filing, each deferred action request is thoroughly and independently reviewed to determine whether to exercise prosecutorial discretion to defer removal. Officers must review individual case files, conduct biometric and biographical background checks, and determine whether the alien has demonstrated threshold criteria for requesting deferred action.

Prior to a determination of whether an alien warrants a favorable exercise of prosecutorial discretion, in certain circumstances, an alien must also meet threshold criteria to be considered for such a request. The threshold is used in particular cases to provide clarity and consistency in adjudication for categories of individuals identified by law or regulation.

The threshold criteria for victims of crimes is to have a bona fide petition for U nonimmigrant status pending with USCIS, or to establish eligibility for U nonimmigrant status in all respects but for the statutory cap. The threshold criteria for victims of trafficking is to have a bona fide application for T nonimmigrant status pending with USCIS. Additionally, for VAWA self-petitioners, the underlying benefit request also needs to be approved.^[1]

As matter of policy and except as specified otherwise by regulation, USCIS generally will not consider granting deferred action to aliens who are in removal proceedings. The purpose of deferred action is not to permanently avoid removal but to receive temporary relief from removal, including being placed into removal proceedings.^[2]

DACA-Specific Threshold Criteria

To be considered for DACA, an alien must first establish that he or she meets the following threshold criteria and merits a favorable exercise of discretion:^[3]

1. Entered the United States prior to attaining 16 years of age;
2. Continuously resided in the United States since June 15, 2007, up to the date of filing;
3. Physically present in the United States on June 15, 2012, and at the time of filing the request for DACA with USCIS;
4. Had no lawful immigration status on June 15, 2012, and at the time of filing;
5. Currently enrolled in school, graduated or obtained a certificate of completion from a U.S. high school, obtained a GED certificate or equivalent, or is an honorably discharged veteran of the U.S. Coast Guard or Armed Forces;
6. Not been convicted of a felony, a misdemeanor as defined in the DACA regulations,^[4] or three or more other misdemeanors, and does not otherwise pose a threat to national security or public safety; and
7. Born on or after June 16, 1981, and is at least 15 years of age at the time of filing, unless he or she is in removal proceedings, has a final order of removal, or has a voluntary departure order.

This threshold criteria is specific to DACA and not all deferred action requests. However, even if the threshold DACA criteria are met, USCIS has the discretion to assess the alien’s circumstances and to weigh both positive and negative factors in the exercise of discretion during the adjudication of DACA requests to determine whether any factor specific to an alien makes deferred action inappropriate.^[5]

B. Analyze Whether Deferred Action Should be Granted as a Matter of Prosecutorial Discretion

If the alien requesting deferred action has filed a proper application or request and has met all applicable threshold criteria, USCIS officers must determine whether the alien has demonstrated that they warrant a favorable exercise of discretion. USCIS officers do this by evaluating all positive and negative factors present in the alien’s case in the totality of the circumstances.

USCIS considers the following non-exhaustive factors when deciding whether to exercise prosecutorial discretion to grant deferred action:

1. Whether the alien has been considered for some other discretionary status expressly authorized by Congress;^[6]
2. Whether the alien’s continued presence in the United States, on balance, provides a benefit to the United States, its citizens, and its interests;
3. Whether the alien’s continued presence in the United States is needed for an ongoing investigation or enforcement action;
4. Whether there are unique compelling circumstances warranting a grant, such as the need for life saving medical treatment in the United States by the alien or the alien’s minor child;
5. Whether the alien possesses the financial means to support himself or herself;
6. Whether there is any compelling reason that the alien cannot or should not return to his or her home country or be removed to another safe country;
7. The alien’s immigration history, including the degree to which the alien has broken U.S. immigration law;
8. Extent to which identity can be established and aliases are disclosed;
9. Criminal history, including the nature and severity of any criminal conduct, as well as the time elapsed since the offense occurred and evidence of rehabilitation, and the actual sentence or fine that was imposed, as an indicator of the seriousness attributed to the conduct by the court. Other factors relevant to assessing criminal history include the alien’s age at the time the crime was committed and whether or not he or she is a repeat offender;
10. Public safety or national security concerns;^[7]
11. Existence of an unexecuted final removal, deportation, or exclusion order;
12. Moral depravity or criminal tendencies reflected by a single serious crime or an ongoing or continuing criminal record, with attention to the nature, scope, seriousness, and recent occurrence of criminal activity;^[8]
13. Whether the alien has endorsed, promoted, supported, or otherwise espoused anti-American views or the views of a terrorist organization or group (including in social media content by, or involving an alien). This includes organizations who support or promote anti-American ideologies or activities, antisemitic terrorism, antisemitic terrorist organizations, antisemitic ideologies, or has engaged in physical harassment of any person in furtherance of the organization or group;^[9]
14. Relevant country-specific facts and circumstances, such as insufficient vetting and screening information;^[10] and
15. Previous instances of fraud or false testimony in dealings with USCIS or any government agency.

C. Regional Director Review

When officers encounter deferred action requests in the field, he or she must determine if the alien is eligible for deferred action and then recommend the grant to the Field Office Director.

A USCIS Field Office Director may, in his or her discretion, recommend deferred action. Such recommendation is made to the relevant District Director. If the District Director concurs with the recommendation, the final determination to defer removal action rests with the USCIS Regional Director.^[11]

D. Screening and Vetting

For certain form types, USCIS requires biometrics (for example, signature, photograph, and fingerprints) as part of the adjudication. In those cases, aliens are required to submit biometrics during the initial processing of the request. Even for requests which do not require submission of biometrics, USCIS still may require biometrics on a case-by-case basis through individual notice. Considering deferred action is an extraordinary exercise of prosecutorial discretion, USCIS may require requestors to appear for biometric collection.^[12]

E. Termination of Deferred Action

USCIS has the authority to terminate deferred action at any time in its discretion.^[13] USCIS generally notifies the alien, in writing, of the termination of deferred action through an NTA, unless USCIS is legally required to send another notice in advance, including a Notice of Intent to Terminate (NOIT). USCIS may, in its discretion, issue an NTA to initiate removal proceedings at any time, in accordance with law. USCIS may, where appropriate and in its discretion, issue a Notice of Termination of Deferred Action, regardless of whether an NTA has been issued.

Termination of DACA

Prior to terminating DACA, USCIS will generally provide a NOIT and provide an opportunity to respond to the notice. However, USCIS may terminate DACA without issuance of a NOIT and an opportunity to respond if the DACA recipient is convicted of a national security-related offense^[14] or an egregious public safety offense.^[15]

USCIS may also issue an NTA, and initiate removal proceedings.^[16] Information contained in a request for DACA related to the DACA requestor will not be used by USCIS for the purpose of NTA issuance unless DHS is initiating immigration enforcement proceedings against the requestor due to a criminal offense, fraud, a threat to national security, or public safety concerns.^[17]

Footnotes

[^ 1] See Chapter 4, Process for Requesting Deferred Action, Section A, Requesting Deferred Action Provided by Regulation [1 USCIS-PM I.4(A)] for more information on the specific benefit requests needed for the threshold eligibility determination.

[^ 2] See Matter of L-A-B-R, 27 I&N Dec. 405, 416 (A.G. 2018). See also Matter of B-N-K-, 29 I&N Dec. 96, 99 (BIA 2025) (noting the significant public interest in bringing immigration proceedings “to a close as promptly as is consistent with the interest in giving the adversaries a fair opportunity to develop and present their respective cases” (quotingINS v. Abudu, 485 U.S. 94, 107 (1988)).

[^ 3] See 8 CFR 236.22(b).

[^ 4] See 8 CFR 236.22(b)(6).

[^ 5] See 8 CFR 236.22(c).

[^ 6] If DHS cannot or has chosen not to grant that other relief, DHS should be very cautious before using prosecutorial discretion to circumvent the express will of Congress.

[^ 7] See Issuance of Notices to Appear (NTAs) in Cases Involving Inadmissible and Deportable Aliens (PDF, 345.39 KB), PM-602-0187, issued February 28, 2025.

[^ 8] The officer should not go behind the record of conviction to reassess an alien’s ultimate guilt or innocence, but rather inquire into the circumstances surrounding the commission of the crime in order to determine whether a favorable exercise of discretion is warranted. See Matter of Edwards (PDF), 20 I&N Dec. 191, 197 (BIA 1990).

[^ 9] USCIS uses the definitions at INA 313(a) when identifying and determining anti-American organizations, views, activities, and ideologies. See Part E, Adjudications, Chapter 8, Discretionary Analysis, Section C, Adjudicating Discretionary Benefits [1 USCIS-PM E.8(C)].

[^ 10] Insufficient vetting and screening information may involve insufficient identity documents or inability to rely on documentation or information provided by the specified countries for identity purposes or determining criminal history or ties to criminal or terrorist organizations. For more information, see Presidential Proclamation 10949, Restricting the Entry of Foreign Nationals To Protect the United States From Foreign Terrorists and Other National Security and Public Safety Threats, 90 FR 24497 (PDF) (June 4, 2025).

[^ 11] See Delegation to the Bureau of Citizenship and Immigration Services, Delegation 0150.1, signed June 5, 2003 (effective March 1, 2003). Delegates highest ranking officials in USCIS authority to grant deferred action.

[^ 12] See 8 CFR 103.2(b)(9) and 8 CFR 103.16.

[^ 13] See Heckler v Chaney, 470 U.S. 821 (1985).

[^ 14] See INA 212(a)(3)(B)(iii), INA 212(a)(3)(B)(iv), or INA 237(a)(4)(A)(i).

[^ 15] See 8 CFR 236.23(d)(1).

[^ 16] See 8 CFR 236.21(c)(1).

[^ 17] See 8 CFR 236.23(e)(1).