Criminal Issues

The Department of Homeland Security will conduct background checks, collect information from local law enforcement, and examine your criminal history during the application process. If you apply for deferred action and are not eligible, you risk being detained and deported. It is strongly recommended that an applicant with a criminal history work with an experienced immigration attorney before applying for deferred action.

According to the Department of Homeland Security, a person eligible for Deferred Action must:

Have not been convicted of a felony offense, a significant misdemeanor offense, 3 or more separate misdemeanor offenses, or otherwise pose a threat to national security or public safety

DHS has clarified these terms:


A federal, state, or local criminal offense that is punishable by prison time of more than one year

Significant misdemeanor offense

A federal, state, or local criminal offense that is punishable by no more than one year of prison time or even no prison time that involves:

      • Violence, threats, or assault, including domestic violence
      • Sexual abuse or exploitation
      • Burglary, larceny, or fraud
      • Driving under the influence of alcohol or drugs
      • Obstruction of justice or bribery
      • Unlawful flight from arrest, prosecution, or the scene of an accident
      • Unlawful possession or use of a firearm
      • Drug distribution or trafficking
      • Unlawful possession of drugs

3 or more separate misdemeanor offenses

Being convicted of three or more other misdemeanors not occurring on the same day and not arising out of the same act, omission, or scheme

Threat to national security or public safety

Possible indications that an individual poses such a threat include:

      • Gang membership
      • Participation in criminal activities
      • Participation in activities that threaten the United States

More information on working with your criminal history when applying for deferred action can be found from the Immigrant Legal Resource Center.