Medical Deferred Action is a special remedy that be a critical immigration benefit for parents of sick or disabled children. However, it can appear quite mysterious because USCIS does not tie it to a specific form and does not provide much information about what it is, or how to apply for it.
The legal team at Helen Tarokic Law has developed our knowledge of this process from available USCIS policies, studying patterns of approvals and denials, from the experience of colleagues and mentors, and from clients who continue to apply with our best efforts and experience. Though this is an unclear procedure, we have had successes in the past and are continuing to build on that to provide this option to our clients and their families.
Overview of Medical Deferred Action
What is Deferred Action? Deferred Action is a decision by the U.S. Citizenship and Immigration Services (USCIS) not to pursue removing or deporting someone from the United States, usually based on some specific reason. It does not give a person any temporary or permanent immigration status. It is simply a decision not to deport someone who may otherwise be deportable. Fortunately, a person who has been granted Deferred Action may have options that a person living in the United States without this Deferred Action does not, such as the ability to apply for a work permit.
Medical Deferred Action is a kind of Deferred Action that provides temporary protection from deportation, most typically for undocumented parents who have sick, disabled, or special/exceptional needs children. The goal is for the family to stay together while the child receives the necessary care.
Medical Deferred Action is also called General Deferred Action (GDA) or Nonmilitary Deferred Action. Medical Deferred Action may allow parents (and sometimes caretakers) to request Deferred Action, and then work authorization, on humanitarian grounds, when their child’s health (or other special condition) requires their presence in the United States.
Medical Deferred Action does not necessarily require a parent to have a very sick child in order to qualify. Sometimes it is granted for other reasons – disability, urgent humanitarian need, or a critical non-medical reason. Deferred Action may sometimes be based on another caretaker, like a grandparent or older sibling, who is taking care of the child.
Medical Deferred Action is not the same as Deferred Action for Childhood Arrivals (“DACA” for dreamers) or Deferred Action for Parents of Americans (DAPA). In fact, Medical Deferred Action existed long before DACA was ever created and before the Obama administration attempted to create a DAPA option.
Deferred Action is a form of extraordinary or unusual relief and is highly discretionary. In simple terms, this means that there is no “one size fits all” application and there is no absolute right to receive this remedy if the applicant meets certain requirements. The decision to grant Deferred Action is entirely up to USCIS on a case-by-case basis. A change in a person’s life circumstances can also mean that even though they got Deferred Action once, they may not qualify for renewal. Policy decisions at the presidential and agency level can change or take away the Deferred Action option.
An attorney may ask about special circumstances in the applicant’s life or in their child’s life to determine if Medical Deferred Action is appropriate. An attorney may look for other immigration options that may be a better or more permanent solution for the family.
This article is not intended to give legal advice for any specific case or person. The information contained here is a general guide, but there are so many factors at play with Medical Deferred Action that very specific legal advice and strategizing are needed. Law and policy change all the time. We advise that you do not apply for any immigration remedy on your own, without the help of competent legal counsel.
Eligibility Guidelines for Medical Deferred Action
USCIS has not published any clear eligibility requirements or made an application form for Medical Deferred Action as it does for other kinds of immigration remedies. However, through experience, such as studying approved cases, immigration attorneys may be able to determine what kinds of cases might successfully be granted Medical Deferred Action.
To qualify for Medical Deferred Action, certain factors need to be considered, such as:
1. Child's Medical Condition
The child will usually have a severe medical condition, disability, or special or exceptional needs that require ongoing care, treatment, or supervision.
For example, a child with cancer (even if in remission), or a child who is deaf and learning ASL, or a child who is so gifted that they need extremely specific and ongoing support, could be situations where ongoing care, treatment or supervision can be significant enough to apply for Medical (General) Deferred Action.
2. Parental Care Requirement
The parent’s presence must be essential to providing the necessary care, treatment, or supervision for the child’s medical condition.
For example, some medical conditions may not be life-threatening, but the parent needs to constantly take the child to appointments (such is the case with autistic children who must attend many regular appointments with educators, therapists, and other specialists.) If a parent doesn’t really need to be involved in the child’s care, then it is much harder to explain to USCIS why the parent needs Deferred Action, a work permit, and a driver’s license.
In some cases, another caretaker (such as a grandparent or older sibling) could be the one whose care and presence is necessary for the child.
3. Financial and Emotional Hardship
The family should try to demonstrate that the child’s medical condition would impose significant financial and emotional hardships if they were separated due to deportation.
When there is a serious medical or mental health issue, it is much easier to explain to USCIS why this hardship would exist. The family should be prepared to show their expenses, especially extraordinary expenses due to the medical care. The child’s needs likely take an emotional toll on the child, their parents, and other family members, so information about those hardships is important to know as well.
4. “Unicorn” Factors and Unique Cases.
If your child is a “unicorn” case – such as a child with a new or rare diagnosis that needs research and examination – or if there are other very special factors about your child or family that could help your case, please let the legal team know as part of the consultation process.
Because USCIS has not published specific rules for qualification, it may leave the door open to special circumstances. We understand that many special scenarios might come to mind based on your family’s needs.
- What if my child is not struggling in school, but rather they are extremely gifted and talented and so need a lot of support?
- What if my child is over 21 and has autism?
- What if my child is disabled or has a mental health disorder leading to them biting, kicking, scratching, pushing, or threatening me?
An attorney may want to discuss such special issues with the applicant to determine whether Medical Deferred Action or some other remedy may be able to help their family.
Notable Types of Cases that May Qualify for Medical Deferred Action:
- Chronic Illness or Disease: Instances where a child suffers from chronic illnesses, requiring continuous medical attention, monitoring, or treatment, such as cancer, Cystic Fibrosis, or Long COVID.
- Disabilities: Cases involving children with physical or intellectual disabilities, including cerebral palsy, Down syndrome, or autism, who rely on their parents for day-to-day care, therapy, or specialized services.
- Life-Threatening Conditions: Situations where a child faces life-threatening conditions, such as heart disease, organ failure, or severe respiratory disorders, necessitating constant medical supervision and immediate access to specialized treatments.
- Medical Fragility: Instances involving infants or young children with complex medical needs, such as preterm infants with respiratory issues or children requiring multiple surgeries, who depend on parental support for their survival and well-being.
Threats to Medical Deferred Action and Reinstatement After Advocacy
During the Trump administration (2017-2021), Medical Deferred Action faced significant challenges. In 2019, a leaked memo from the U.S. Citizenship and Immigration Services indicated that the administration intended to end Medical Deferred Action. This sparked outrage and drew attention to the plight of families facing potential separation.
Advocacy and Reinstatement: In response to the widespread public backlash and advocacy, the Trump administration reversed its decision and reinstated Medical Deferred Action. This development brought relief to countless families whose ability to care for their sick children would have been jeopardized. For more information on this advocacy, review the history of practice alerts from the American Immigration Lawyers Association (AILA), explaining each step AILA took to revive or reinstate the program: https://www.aila.org/infonet/practice-alert-uscis-stops-accepting.
AILA reported in 2019:
Today, in a huge victory for the vulnerable individuals and families impacted, the Department of Homeland Security alerted members of the Oversight & Reform Committee that at the discretion of Acting Secretary McAleenan it would resume “consideration of non-military Deferred Action requests on a discretionary, case-by-case basis, except as otherwise required by an applicable statute, regulation, or court order.” (AILA Doc. No. 19082334, September 19, 2019)
After the program was reinstated, immigration attorneys were able to reapply or get reopening notices for clients with pending Medical Deferred Action cases. However, many cases remained pending for a long time. The history of threats to Medical Deferred Action underscores the importance of public engagement in safeguarding the well-being of vulnerable families and promoting compassionate immigration policies.
The Need for A Comprehensive Legal Strategy – Plan A, B, and C !
Though the Medical Deferred Action/General Deferred Action program was reinstated and continues during the Biden Administration, it is not certain that the program will always be available. Thus, an attorney advising on Medical Deferred Action may also consider an applicant’s overall history and screen for other immigration relief (such as T Visas and U Visas) to put together a comprehensive case strategy.
The goal is to have a Plan A, Plan B, and Plan C!
We have also noticed that sometimes parents of such children have desperation and fear that makes it hard for them to know and enforce their rights in the United States. If a parent is terrified of being separated from their child who has a special condition, the parent may be more easily exploited or victimized, which may lead to some other immigration options. This is why the screening process may ask questions about how this family situation affects the parent’s personal and work life.
Application Process for Medical Deferred Action
Does USCIS’s website have an application form number for Medical Deferred Action? Does USCIS’s website explain how to apply? What does the application look like?
As of the time of this article (summer 2024), there is no Form for Medical Deferred Action and no specific page on the USCIS website that explains the application process. When searching these terms on the USCIS website, it often references DACA (for people who came to the US as children), but that is not the same remedy as Medical Deferred Action.
It has been challenging to understand the process of applying for Medical Deferred Action, since USCIS does not have any formal standards or guidelines. USCIS has held some stakeholder meetings where they have discussed Medical Deferred Action.
The application usually contains an attorney cover letter that explains the eligibility and evidence in support of a discretionary grant of Medical Deferred Action. Evidence can include a declaration from the child’s caretaker(s), medical records, education records, letters from people providing services to the child, and other materials.
Approval and Next Steps: Work Permit, Drivers’ License, Renewal
What happens if the application is approved?
Medical (General) Deferred Action is not an immigration status. It is only a decision by USCIS not to pursue removing or deporting someone from the United States.
What does a Medical Deferred Action approval letter look like and what can it teach us about how Medical Deferred Action works?
Below is an example of what a “General Deferred Action” or “Medical Deferred Action” approval letter from USCIS looks like (the letter template can change over time). Since USCIS has not published any clear guidelines on the eligibility, application process, and what options the holder has during this grant of Deferred Action, approval letters such as the one below are very useful in understanding the holder’s options.
How long does Medical Deferred Action last? Can it be renewed?
The example letter above and the grant of Deferred Action is only valid for two years.
There is an option for renewal, but important restrictions and timelines as well. Renewals are not automatic or guaranteed.
The letter says the approved applicant should apply for a renewal of the Deferred Action within 90 days of the expiration date, but USCIS often takes much longer to approve a renewal of Deferred Action. This can cause gaps in work authorization and gaps in lawful presence, and so having an attorney can make a big difference when the letter by USCIS doesn’t always reflect correct advice about processing times for renewals.
Renewals are not automatic or guaranteed, and an attorney cannot promise an applicant that their filing will be successful. Our legal fee contracts also make it very clear we can’t make promises or guarantees about legal results.
Changes in life circumstances – and even changes in law and policy at the national level – can make it so that an applicant may not be eligible to renew their Deferred Action petition. As GDA is highly discretionary – meaning that it is entirely up to USCIS whether or not it thinks the applicant qualifies for this remedy – we cannot guarantee that if the applicant received this GDA once, that they will certainly be able to renew it again.
Getting a work permit + How long is the EAD/Employment Authorization Document valid?
The letter says the approved person can apply for work authorization (an EAD). However, keep in mind that it can take many months (or even a year) to obtain the actual work permit approval.
Also, the I-765 Application for Employment Authorization must be filed and approved, and the work permit must be issued by USCIS for the person to get a social security number (SSN). So, getting the Deferred Action letter is only the beginning of the work authorization process.
The letter doesn’t explain what “economic necessity” is – but usually, if a person is granted this kind of Deferred Action, they are going to have a sufficient economic necessity for work authorization to be issued (especially for places where a driver’s license can’t be issued without a work permit).
If the Deferred Action is granted for two years, then once the EAD is applied for and approved, the EAD will be valid (usually) only until the end of the 2-year period stated on the Deferred Action approval letter. This means the work permit might only be valid for a year or so, and the renewal process for Deferred Action will need to begin again.
Getting a Driver’s License (North Carolina)
The letter does not specifically mention that a person can get a driver’s license. Usually, in North Carolina, the NC Department of Motor Vehicles will issue a driver’s license based on the letter granting Deferred Action, instead of having to wait for the EAD/work permit to be issued. However, state law on driver’s licenses varies, and a local DMV office can easily get confused about what the letter means.
Frequently Asked Questions about Medical Deferred Action
1. Is this the same as DACA?
No. Medical (General) Deferred Action is not the same as Deferred Action for Childhood Arrivals. They are both a kind of Deferred Action. However, DACA focuses heavily on certain specific factors, such as the individual’s age when they came to the United States and their education history.
In contrast, for a parent to receive Medical Deferred Action, they must be taking care of a child with specific needs (as described above), and their physical presence in the United States must be seen as essential to that child’s care. See the Eligibility section above for more information.
However, as we stated above, an attorney can take an applicant’s entire life history into account to develop a comprehensive case strategy. The applicant’s entry into the United States, their education and work history, etc. is all relevant to identifying a path forward for the applicant and their family.
2. Does it have a path to a green card?
No, not usually. However, an attorney can screen applicants for other remedies, such as a U or T Visa, to see if there is any other option that might have a path to a green card.
3. If I am denied Medical Deferred Action, will I be deported?
As of the time of this writing in Summer 2024, the Biden administration’s policy is not to place someone into removal/deportation simply because they declined to approve Medical Deferred Action. Our legal team stays updated on changes in law or policy that may change this level of risk.
4. If I am denied Medical Deferred Action, may I re-apply?
In some cases, yes, it may be wise to reapply, especially if additional risk factors have come up for the child or their family. However, we do not recommend that you do this on your own without an attorney. An attorney can screen the applicant to see if it may be worth applying again, or if some other remedy may be available for you or your family.
5. If I am in deportation proceedings, should I apply for Medical Deferred Action?
Medical Deferred Action is not generally for people who are already in a deportation (removal) proceeding, and it generally is not for people who have already been ordered removed/deported. Of course, there are some exceptions. The legal team would need to advise on the right strategy. If a person is in removal with sick or disabled children, there may also be alternative forms of relief or alternative deportation defense available.
6. Can an immigration judge give me Medical Deferred Action?
No, Medical Deferred Action is not something given by an immigration judge.
7. If I am NOT in deportation, can I apply for Medical Deferred Action?
Medical Deferred Action is generally for people who are undocumented and who do NOT have a removal/deportation history – if they meet the other criteria for Medical Deferred Action. If Medical Deferred Action is approved by USCIS, USCIS should issue a letter stating that the person is being given Deferred Action for a specific time period. Medical Deferred Action is NOT a process that involves immigration court.
8. Do I have to live in America for 10 years to apply?
Medical Deferred Action is not the same as the option that people sometimes refer to as “Law about parents living here 10 years.” Usually when people think about the “10 year law for parents whose kids would suffer if they were deported” they are talking about Cancellation of Removal, which is a process in front of an immigration judge.
9. Is Medical or General Deferred Action for military families?
In a few cases, we have requested Deferred Action for undocumented people who have immediate relatives in the military, when “PIP” or military parole in place was not applicable to their unique case. Most of the cases for Deferred Action like this are for people who are not PIP qualified, but still need Deferred Action and work authorization.
10. If I have a criminal record, will I be disqualified from Medical Deferred Action?
It depends – if an applicant has a criminal history, they may be at risk for denial. USCIS usually does consider whether the person has a criminal history and whether that makes them a priority for deportation (which may change by presidential administration). USCIS may consider sympathetic factors in the applicant’s favor. The agency may also consider whether there would be negative publicity for the agency if it approved the case.
If your criminal history is very serious or violent, this can be a high-risk or even dangerous filing. Please disclose ALL criminal history to the team in preparation for a consultation.
11. If I have multiple entries to the US but have never been detained by immigration, will I be disqualified from Medical Deferred Action?
Please disclose ALL entries and exits to the legal team for your consultation. Hiding entries or exits, or lying about immigration history is a bad idea.
Entries and exits alone (including some entries without inspection, like walking across the border) do not usually disqualify someone from Medical Deferred Action options. However, an attorney will want to know about all the immigration history to make a full determination.
How can I prepare for my Medical Deferred Action consultation?
See also: How to set up a Consult and other FAQ
As part of the consultation process, the legal team/attorney may want to discuss the following and talk about how to get any records in support of these topics:
- Your (the applicant’s) immigration history.
- Your child’s medical condition and needs
- How you as the parent/caretaker take care of your child.
- Any emotional difficulty and any financial hardship this situation causes for you and your family.
Medical documents or other records showing your child’s needs and treatment
It will be helpful to have documentation of the relevant diagnosis, prognosis, and treatment records.
We usually do not want thousands of pages of medical records. A doctor or clinician’s letter explaining the child’s treatment history, their need to remain in the US, and any rare circumstances, can be much more helpful.
It may help to have a letter or records from therapists, doctors, providers, clinicians, teachers etc. who are providing direct care and support for the child. Especially when the child requires multiple services, each specialist’s ability to explain how the parent is key to the child’s treatment and life may be different.
This process sounds difficult and complicated. Why aren’t there better laws for parents with sick kids?
We feel your pain. Medical Deferred Action can be lifesaving for the families it helps, but it is still burdensome on them to have to go through this process. We wish there were better laws for parents with sick kids too! We may look for better and long-term immigration options for the family. If Medical Deferred Action is the best or only option, the attorney may explain the steps to proceed forward.
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