What’s This New ‘Kiddie Amnesty’ All About?

ON JUNE 15, 2012, President Obama signed an Executive Order implementing a program commonly known as “Deferred Action”. It is less robust than the DREAM Act which did not become law but it addresses the same population, the undocumented that were brought to the US as children.

Although there will be some Brits that would benefit from this program, the vast majority of applicants will likely be from Mexico and a variety of Central American countries. The application period commenced on August 15, 2012. There is no cap on the number of applicants that can apply so it is not critical to get applications in immediately.

There are eight main eligibility criteria:

Entered illegally or legal status expired as of June 15, 2012: Most Brits enter the US with a visa or as a visitor pursuant to the Visa Waiver program. If the latter, the 90 Visa Waiver stay must have expired prior to June 15, 2012 to be considered to have met this criteria.

At least 15 years of age at the time of filing: This is self explanatory

Arrived in the US before the age of 16: So long as the applicant was 15 years and 364 days old or younger at the time of arrival, he/she would qualify on this score.

Born after June 15, 1981 (ie; not 31 years old or older on June 15, 2012): This is self explanatory.

Have continuously resided in the US since June 15, 2007, up to the present time: Documenting this fact will be the challenge here. School records, medical records, tax filings (yes, many illegal immigrants file tax returns), residential leases, etc can be used. Even certain short trips out of the US may be excused.

Were present in the US on June 15, 2012: This is self explanatory;

Currently in school, graduated or received a certificate of completion of high school, obtained a General Education Development Certificate (GED), or or an honorably discharged veteran of the Coast Guard or US Armed Forces: A variety of types of schools are acceptable for the applicant to be “in”; and

Has not been convicted of a felony, a serious misdemeanor or three or more other misdemeanors, and does not pose a threat to national security or public safety: Not a particularly high bar a careful analysis of a potential applicant’s criminal history is critical.

Many intending applicants do not even have a passport or identification resulting in a run on the certain foreign consulates in the US. Another challenge for applicants is actually documenting their residence in the US for the requisite period of time. Many have lived “under the radar” and have scant evidence of their existence in the US.

Perhaps the least appreciated parts of this “opportunity” to potentially qualified applicants is the inherent risk in actually making the application, whether or not it is approved. It must be appreciated that this is a two year program that results in a work permit for the applicant. The status and work permit can be extended if the program continues. Approved applicants are not accorded any lawful status , temporary or permanent, in the US. Their deportation is merely “deferred” at this time. Also, if a future President will be elected that disagrees with this program, he/she can effectively cancel it or more likely, decide not to extend the program. In either case, the Federal government would have applicants in their system and these applicants would then be “deportable” once again. There is also concern about ineligible family members getting the attention of enforcement authorities. The decision as to go forward or not is a bit easier for those already in “removal” proceedings. Deferred Action can be effectively used to “terminate” those proceedings, a defense to being deported that was previously not available.

The form on which to apply is six pages long and the instructions are nine pages long. As with all legal matters, applicants are encouraged to seek competent advice before deciding whether to apply for this or government program.

Another issue for Deferred Action applicants to be aware of is the opportunity to apply for something called “Advance Parole” after the Deferred Action application is approved. With approved Advance Parole, a foreign national can typically depart the US and use the Advance Parole document to legally enter the US. This is very tempting to a foreign national that likely has not the US probably, since entering many years ago. However, those unlawfully present in the US for 180 days, after the age of 18 are subject to a three year bar on returning to the US, EVEN WITH ADVANCE PAROLE! Again, Deferred Action is NOT a lawful status in the US to safely return to. If the period of unlawful presence is a year or more, the bar is 10 years. This risk is far from clear in the application and accompanying instructions and it is fully anticipated that many applicants will experience the high of be approved for Deferred Action and issued a work permit, only to experience the extreme low of not being allowed back into the US after an apparently authorized departure.

The above information is given for informational purposes only and should not be taken as legal advice. Please consult with an attorney to discuss the particulars of your own case. Mitch Wexler is a Partner with the international immigration law firm, Fragomen, Del Rey, Bernsen & Loewy. He is resident in its Irvine, CA office. He has been practicing immigration law for over 25 years and welcomes all queries to mwexler@fragomen.com or (949) 660-3531.

This article was first published in September 2012