Immigration amnesty is a legal concept which provides certain non-United States aliens with the ability to remain in the United States, either on a temporary or permanent basis. Individuals seeking amnesty are often individuals who are fleeing conditions of religious or political persecution in their country of origin.
In general, amnesty refers to an individual who has already entered into the United States, but who entered illegally. These individuals may be granted a pardon for their illegal entry.
Refugee or asylum laws, in comparison, may cover situations where the individual has not yet fled from their home country.
Which Persons Qualify for Amnesty Protection?
Typically, granting of amnesty is done on an individual, case by case basis. Most cases of amnesty, however, require that an individual meet certain requirements, including:
- Not having a record of criminal charges;
- Residing in the U.S. continuously, usually 10-20 years usually; and
- Showing that the individual will not be a “charge,” or burden, to the state if granted citizenship.
An individual must also be able to show that they would face real and direct threats that are not imaginary if they are required to return to their home country. For example, if an individual’s family was singled out due to their last name and was subject to:
- Interrogations; or
- Physical harm.
The individual must be able to document the persecution which exists in their country. Immigration amnesty is a rarer form of migration than other types, but it has been applied over the decades, especially for individuals and families who are facing conditions of extreme political persecution.
When is Amnesty Granted?
Amnesty is not automatically granted. In the majority of cases, it is granted well after an individual has entered the United States. Amnesty may even be granted in cases of illegal immigration, though this is only done under very specific circumstances.
Amnesty may be granted in situations where:
- Persecution exists: The alien is facing immediate, real persecution if they were to return to their home country. This is usually based on political persecution. The individual must face imminent harm or death if they return to their country;
- Residency is fulfilled: The individual must be living in the U.S. for a certain period of time. This is usually applicable to individuals who originally entered into the country illegally;
- There is no criminal history: The individual must have no history of major criminal charges. Multiple misdemeanors or citations can sometimes be just a serious as felony charges; and
- The individual will not be a “civil charge”: The state must determine that the alien will not become a “civil charge.” This means that the individual will not be a burden to state resources such as welfare or other assistance programs. Aliens are able to be employed, therefore, stand a greater chance at obtaining asylum.
Can Amnesty Privileges be Lost?
Yes, an individual may still be subject to deportation or removal even after they have been granted amnesty. For example, if an individual commits a crime after being granted amnesty, they may still be removed from the country if they had been granted a temporary visa.
It is important to note that repeat offenses of offenses which are less serious may have the same effect as a felony charge. This can be different for cases which involve an individual who has been granted permanent residency.
How Do I Apply for Amnesty?
To apply for amnesty, an individual will generally need to file with the appropriate United States immigration agency, for example, the United States Citizenship and Immigration Services (USCIS). Depending upon an individual’s situation, they may be required to submit a number of forms, including Form I-698, Application to Adjust Status from Temporary to Permanent Resident.
The requirements will depend upon each individual applicant’s situation.
What is Administrative Amnesty?
The United States Immigration Department maintains various amnesty laws which provide protection to political refugees and asylees. Administrative amnesty, in comparison, includes certain executive policies that grant protections to individuals who originally entered into the country illegally.
One example of these laws is the Deferred Action for Childhood Arrivals (DACA). These types of laws are passed through executive, or presidential, mechanisms instead of through the immigration department.
In contrast to other amnesty laws and policies, DACA does not provide a pathway for individuals to achieve citizenship. DACA also does not provide an individual with a change in status or a switch to lawful immigration status.
Instead, it only delays removal, or deportation, actions for individuals who qualify.
Who Qualifies for Deferred Action?
There are numerous qualifications which must be met in order for an applicant to qualify for deferred removal action, including that the individual:
- Must not be older than 31 years of age as of June 15, 2012;
- Must have entered the U.S. before they were 16 years old;
- Must have resided in the U.S. since June 15, 2007;
- Must also be physically present in the country from June 15 2012 and also at the time they are requesting deferred removal;
- Must have a clean criminal record with:
- no felonies;
- no significant misdemeanors; or
- less than 3 misdemeanors; and
- Have a lawful immigration status, or other status, which must have expired by June 2012.
Because the DACA is aimed at children and younger individuals, the applicant must also be in school at the time of their petition or they must have already graduated from high school. Military service may also be considered.
Can Administrative Amnesty be Denied?
Yes, an application for administrative amnesty may be denied if it is determined that an individual does not meet the requirements listed above. Any cases of fraud or deceit in an amnesty application may result in severe consequences for the offender.
Therefore, it is important that the applicant carefully consider applying for administrative amnesty.
What Are Some Points to Consider when Applying for Amnesty?
When applying for amnesty, it is important to consider what the effects of the application may be. For example, an amnesty application may involve an investigation into an individual’s background and their residence history.
This investigation will disclose information regarding them and their loved ones which may affect their immigration status. For example, an amnesty application might subject an individual or someone they know to a removal investigation.
Therefore, an individual may want to consult with a lawyer to determine whether amnesty is an appropriate choice for their situation.
Do I Need a Lawyer for Help with Immigration Amnesty Requests?
Filing an application for amnesty will often involve large volumes of paperwork and may also involve many different steps. It may be helpful for you to hire an immigration attorney for help filing your request.
It is important to note that immigration amnesty laws are typically very specific and may only apply to a certain portion of the overall population. Your lawyer can advise you regarding the current amnesty laws and whether you may qualify.
Amnesty laws are often subject to change as global and political conditions change. Your attorney will be able to keep you informed on the best options for you.
Your lawyer will provide you with guidance and advice for completing your application. In addition, if you are required to attend an interview or hearing, your attorney can represent you during those.