Amnesty and Presidential politics
The press has been questioning whether the presidential candidates support “amnesty” for illegal immigrants. Donald Trump is expected to give a speech on Wednesday (Aug 31, 2016) regarding his proposed Immigration policy. What does the press mean when they use the term amnesty?
AMNESTY defined (Black’s Law Dictionary):
A sovereign act of pardon and oblivion for past acts, granted by a government to all persons (or to certain persons) who have been guilty of crime or derelict, generally political offenses.
Q: In the Immigration context, what is being pardoned?
Under the U.S. Immigration law, A Foreign National (FN) who enters the U.S. without being inspected and admitted (EWI) is not eligible to remain in the U.S. and obtain lawful status. That includes non-immigrant visitor status, or lawful permanent resident status (Green Card). The only exceptions are for those seeking asylum , and those whose removal would result in “Extremely Unusual” hardship to certain U.S. citizen family members.
So, an exercise of amnesty would allow those in EWI status an opportunity to apply for legal status, without having to leave the U.S..
Q: Who are the beneficiaries of Amnesty:
Basically, we can divide the illegal population into 3 groups:
Those foreign nationals in the U.S. who have
1) entered the U.S. illegally, or
2) over stayed their non-immigrant visas (NIV), or
3) disobeyed an Order of Deportation requiring that they leave the U.S..
In the case of #1, those who have entered the U.S. without being inspected or admitted are very limited in their ability to obtain legal status. They cannot apply for valid non-immigrant status or Lawful permanent resident (green card) status while still in the U.S.. The limited exceptions to this are for those who are from countries that have received Temporary Protected Status (TPS) (which was detailed here in a recent post). Or for those fleeing persecution in their country and are granted asylum.
The only other option for #1 is what we practitioners consider to be the PRIMARY AMNESTY provision, and that is for those whom INA section 245(i) applies.
245(i) is a route to lawful permanent resident status for those who can show that they were the beneficiary of an LPR visa petition prior to a certain cut-off date, that they were physically present prior to that date, and THAT they pay a penalty ($1,000). The current date for eligibility under 245i is April 30, 2001, (along with physical presence as of December 21, 2000). If the FN has visa receipt and physical presence, by the cutoff dates, and they pay the penalty they can obtain a “green card” if a visa petition is approved.
In the case of #2, those who entered the U.S. legally with a visa, or were visa exempt, but overstayed, they are permitted to file for LPR status if petitioned by a U.S.C. immediate relative (spouse, parent, or child over 21). They can also obtain LPR status through an employer or non-immediate family member if they are 245(i) eligible. If not 245(i) eligible, they must return to their country and attempt to consular process the immigrant visa (subject to any bars of admissibility)
In the case of #3, those ordered deported, they cannot file for green card status while under a Deportation order. They must successfully file a motion to reopen the Deportation case, and have the Order rescinded. Due to time limitations imposed by law, an Order can only be reopened upon motion filed jointly with the DHS attorney assigned to the case.
So, if amnesty means obtaining LPR (green card) status, then the above rules apply.
Q: What about citizenship?
FNs can only obtain citizenship in the U.S. if they first obtain LPR status. An illegally present FN cannot be granted citizenship without first being granted a green card. They can apply for citizenship after having green card status for 5 years (3 years if obtained by marriage to U.S. citizen) and meet all other requirements of citizenship (physical presence, good moral character, etc.)
We don’t know yet what the candidates have in mind when they are questioned about “amnesty“. We practitioners know that the current amnesty provision, 245i, as outlined above requires having a petition filed prior to April 30, 2001, and the payment of a $1,000 penalty. We also know that citizenship can only be applied-for after LPR status is acquired. Thus, it would not be correct, under current law, for a candidate to say they supported green card status, but not citizenship.
If a candidate does support a new amnesty provision, a simple change in the law would be a new date for the 245i provision, one more recent than 2001.