Immigration News Update
Subject: LIFE Act
REAUTHORIZES SECTION 245(i) UNTIL APRIL 30, 2001
Under the LIFE Act, the "grandfather" clause of Section 245(i) is extended from January 14, 1998 until April 30, 2001. As a result, any beneficiary of an immigrant visa petition or labor certification application filed before April 30, 2001 will be able to apply for adjustment of status under Section 245(i) if necessary. However, for any applications filed after January 14, 1998 (but before April 30, 2001) the applicant must prove they were physically present in the United States on the date of the enactment of the LIFE Act (December 21, 2000) in order to be eligible for Section 245(i) adjustment of status.
CREATES A NEW TEMPORARY VISA FOR SPOUSES AND MINOR CHILDREN OF LEGAL PERMANENT RESIDENTS AWAITING AN IMMIGRANT VISA
In order to address the severe backlogs on the availability of visas for families, the LIFE Act provides a remedy for the spouses and minor children of legal permanent residents. Under current law, because these individuals are intending immigrants, there is no way for them to legally come to the United States, even for a short visit. By creating a new "V" visa, the law grants some family members a legal status and work authorization in the United States.
New "V" Visa: Allows the spouses and minor children of lawful permanent residents (the Family 2A category only) who have been waiting more than 3 years for a green card, to enter the United States and be granted work authorization. In order to qualify the spouse or child must meet the following criteria:
A green card petition was filed on or before enactment of the law. The sponsoring permanent resident must already have filed a green card petition for the spouse or minor child with the INS as of the date that the LIFE Act became law (December 21, 2000).
Must have been waiting at least 3 years. The petition must either have been pending with the INS for three years or more or, if the petition has been approved, the spouse or minor child must have been waiting at least three years for their "turn" in the green card line.
Waiver of Grounds of Inadmissibility and Adjustment of Status. The law provides that periods in the United States in unauthorized status will not prevent someone from obtaining a V visa (ß212(a)(9)(B) shall not apply). The law also would allow individuals already in the United States to apply to "adjust status" to the new V category, even if they are in the United States unlawfully (ß212(a)(6)(A), (7), and (9)(B) shall not apply). With the reinstatement of Section 245(i), V visa holders will be eligible to adjust their status to legal permanent resident under that section.
CREATES A NEW TEMPORARY STATUS FOR SPOUSES OF U.S. CITIZENS AWAITING AN IMMIGRANT VISA
In order to address the severe backlogs on the processing of petitions for family members, the LIFE Act creates a remedy for the spouses of United States citizens who are outside of the United States and waiting for the approval of an immigrant petition. Any minor children who are seeking to accompany the spouse are also provided protection. By expanding the eligibility for a K visa, the new law will allow the spouse of a U.S. citizen to enter the United States and obtain work authorization while waiting for the petition to be approved.
Expansion of FiancÈe Temporary Visa Category. The bill expands the use of the "K" visa, which currently allows fiancÈes of U.S. citizens to enter the United States for the purposes of getting married, to be used by spouses of U.S. citizens who are already married and are waiting outside of the United States for the approval of their immigrant visa petitions. Any minor children who are accompanying the spouse can be included in the petition. In order to qualify the spouse and minor children must meet the following criteria:
An immigrant visa petition must be previously filed. The law requires that the U.S. citizen file an immigrant petition before a visa can be issued to the spouse abroad. The K visa will allow the spouse abroad to enter the U.S. and await the approval of the petition.
Recipient of the K visa must be outside of the United States. The law only authorizes the visa to be issued by a consular officer outside of the United States. There is no provision to "adjust status" for someone already in the United States in an unlawful status.
The K visa petition must be filed in the United States. The petition for the K visa must be filed in the United States by the U.S. citizen spouse.
If marriage occurs outside of the U.S., the K visa must be issued by the consulate where the marriage occurred. Where the marriage to the U.S. citizen occurred outside of the United States, the statute says that, at the time of admission, the alien must have "a valid non-immigrant visa issued by a consular officer in the foreign state in which the marriage was concluded."
Available to current and future applicants. The bill provides that this new K status is available both to individuals with currently pending green card petitions and future applicants.
Work Authorization. Current law provides that K visa holders are permitted to work in the United States. This provision would apply to these new K nonimmigrants as well.
ALLOWS FOR THE ADJUSTMENT OF STATUS OF CERTAIN LATE LEGALIZATION CLASS MEMBERS
Who Is Eligible for Relief:
The LIFE Act makes some modifications to the provisions of the 1986 amnesty (Section 245A of the INA) and provides an opportunity to apply for this relief only to those people who were part of certain class action lawsuits against the INS for their improper handling of the 1986 amnesty program. To qualify a person must prove that he or she:
Filed a written claim, before October 1, 2000, for class membership in CSS v. Meese, LULAC v. Reno, or INS v. Zambrano (three of the various class action lawsuits filed against the INS for their improper handling of the 1986 amnesty program).
Entered the United States before January 1, 1982 and resided continuously in the United States in an unlawful status through May 4, 1988.
Was continuously physically present in the United Sates beginning on November 6, 1986 and ending on May 4, 1988 (brief, casual and innocent absences will not interrupt a finding of continuous physical presence).
Files an application for adjustment of status with the Attorney General within one year of the date on which the Attorney General issues final regulations to implement the new law. The Attorney General is required to issue those regulations within 120 days after enactment.
Has not been convicted of any felony or three or more misdemeanors, has not assisted in the persecution of any person (on account of race, religion, nationality, political opinion or membership in a particular social group), and is registered or registering under the Military Selective Service Act (if required to do so under that Act).
Is not inadmissible to the United States as an immigrant. The Attorney General may (for humanitarian purposes, to assure family unity, or when it is in the public interest) waive any of the grounds of inadmissibility except those relating to criminals, drug offenses, security grounds, and public charge grounds.
In addition, the Attorney General may grant a waiver of the grounds of inadmissibility related to aliens seeking admission after previous removal and aliens present after previous immigration violations. Is able to pass the naturalization exam (relating to an understanding of basic civics and the ability speak, read, and write ordinary English), or show that they are satisfactorily pursuing a course of study (recognized by the Attorney General) to achieve such an understanding of English and civics.
Relief Granted Under the Law:
Eligible applicants will apply directly for permanent residence, rather than for temporary resident status.
The Attorney General is required to establish a process under which an alien who has become eligible to apply for adjustment of status as a result of the enactment of this law and who is not physically present in the United States may apply for such adjustment from outside of the country.
Applicants who submit a prima facie application under this law are entitled to a stay of deportation, work authorization, and permission to travel while their application is pending.
The limitation on judicial review under IIRAIRA (Section 377) will not
Newly legalized persons will not be disqualified from receiving certain public welfare assistance. (Under the original Section 245A applicants were disqualified from certain assistance for 5 years after their application was filed). However, they may still be subject to restrictions bases on the 1996 Welfare Reform Law.
The confidentiality provisions of Section 245A (that generally prevent the information submitted on the application from being used for any purposes except criminal prosecution) will apply, except that information submitted by an applicant under the new law may be used in proceedings to rescind an adjustment of status.
GRANTS PROTECTION FROM DEPORTATION AND WORK AUTHORIZATION TO THE SPOUSES AND CHILDREN OF LATE LEGALIZATION APPLICANTS
Consistent with laws passed in 1990 to protect the family of legalization applicants who were already in the United States, the LIFE Act prevents the deportation of the spouses and minor children of a person who is applying for late legalization under the new law. Also consistent with prior laws, these family members are eligible for work authorization
Who Is Eligible for Relief:
To be eligible for benefits a person must prove that he or she is:
The spouse or unmarried child of a person who is eligible for adjustment of status as a result of the late legalization provisions of the LIFE Act.
Entered the United States before December 1, 1988 and resided in the United States on that date.
Has not been convicted of a felony or three or more misdemeanors in the United States, has not assisted in the persecution of any person (on account of race, religion, nationality, political opinion or membership in a particular social group), or is otherwise not a danger to the community of the United States.
Relief Granted Under the Law:
Eligible people will be protected from deportation for violations of status in the United States but will continue to be deportable for other grounds of deportation, including criminal activity.
Eligible people will be entitled to work authorization in the United States
If the applicant for benefits under the late legalization provisions of the LIFE Act is applying from outside of the United States, the Attorney General is required to establish a process by which eligible spouses and children may be paroled into the United States in order to obtain the benefits under the new law.
PROVIDES CERTAIN WAIVERS AND PROTECTIONS AGAINST DEPORTATION FOR APPLICANTS UNDER NACARA AND HRIFA
Waiver of certain grounds of inadmissibility: In applications for adjustment of status under NACARA and HRIFA, the Attorney General may waive certain grounds of inadmissibility relating to re-entry after a previous order of deportation or removal (ß212(a)(9)(A) and (C)).
Protection from reinstatement of prior orders of deportation or removal: In applications for adjustment of status, for suspension of deportation, or for cancellation of removal as provided by NACARA or HRIFA, the Attorney General is prohibited from reinstating previous orders of removal or deportation in order to prevent those applications from being filed (ß241(a)(5) shall not apply).
Availability of Motions to Reopen: NACARA and HRIFA applicants who become eligible to apply for adjustment of status, suspension of deportation, or cancellation of removal as a result of the changes contained in the LIFE Act will be able to file one Motion to Reopen any exclusion, deportation, or removal proceedings in order to apply for an adjustment of status under the Act. This right to file a Motion to Reopen exists notwithstanding any time and numerical limitations otherwise imposed under the Immigration and Nationality Act
Copyright © 2001, American Immigration Lawyers Association
THE EXTENSION OF SECTION 245(i):
Disclaimer: This Q & A is for informational purposes only, and should not be considered legal advice.
1. What is the new Section 245(i) provision of the Legal Immigration and Family Equity Act of 2000 (LIFE Act)?
The new Section 245(i) allows certain eligible people (see answer to question #3) to become permanent residents without leaving the U.S. Eligible people have until April 30, 2001 to file an immigrant visa petition (an I-130, I-140, or I-360) with the Immigration and Naturalization Service (INS) or a labor certification application with the Department of Labor (DOL) in order to take advantage of this new provision. IMPORTANT NOTE: The LIFE Act adds a new "physical presence" requirement: People who file a petition or labor certification after January 14, 1998 but before April 30, 2001 must prove that they were in the U.S. on December 21, the date this measure became law, in order to be eligible to use Section 245(i).
Filing an immigrant visa petition is the first step in a two-step process. The second step is acquiring permanent residency (the "green card") by filing an adjustment of status application (Form I-485). Even if a person does not apply to adjust status until after April 30, 2001, as long as the petition or labor certification is filed before that date, if he/she is qualified, their eligibility will not expire.
2. Why is this new Section 245(i) needed?
Because Congress phased out the original Section 245(i) on January 14, 1998. (The original Section 245(i), authorized in 1994, allowed eligible people who were out of status to adjust their status in the U.S. upon payment of a fee of $1,000.) People who already qualified as of January 14, 1998 were "grandfathered" to receive the benefits of Section 245(i). However, many qualified people missed the January 14 deadline and others since have fallen out of status. The extension of Section 245(i) until April 30, 2001 provides a four-month window of opportunity for people to protect their ability to adjust their status in this country.
3. Who is eligible to qualify for the new Section 245(i) provisions?
A person who is eligible for permanent residence based on a family relationship or job offer, and who wishes to adjust status to permanent residence without leaving the U.S., could benefit from the new Section 245(i). Most people who entered the U.S. without inspection, overstayed an admission, acted in violation of the terms of their status, worked without authorization, entered as a crewman, or were admitted in transit without a visa, are considered out of status and would be unable to complete the process to become a permanent resident in the U.S. without Section 245(i).
4. What are the three and ten year bars, and why should they be of concern?
Without Section 245(i), out of status people needed to return to their home countries and there complete the process for an immigrant visa at the U.S. consulate. However, if people have been out of status in the U.S. for more than 180 days, they would be barred from reentering the U.S. for at least 3 years, and perhaps as long as 10 years. Under Section 245(i), an eligible individual can remain in the U.S. to obtain permanent residence through adjustment of status, and thus never trigger these entry bars. (Once permanent residence is obtained, these entry bars no longer apply.) Thus, it is particularly important that people subject to the bars not leave the U.S. at all until they become permanent residents.
5. What does the new physical presence requirement mean and how do you prove compliance with it?
Under the new law, beneficiaries of an immigrant petition or labor certification that is filed after the old deadline of January 14, 1998, but before the new deadline of April 30, 2001, must prove that they were physically present in the United States on the date that LIFE Act is signed into law, December 21, 2000. People can prove compliance by submitting evidence of physical presence in the U.S. This evidence could include any receipts for December 21 that include the beneficiary's name.
6. How does a person take advantage of the new Section 245(i)?
To take advantage of the new Section 245(i), a relative must submit a visa petition to the INS on behalf of the person seeking Section 245(i) benefits. The U.S. citizen or legal permanent resident who is sponsoring the Section 245(i) eligible person must file (and sign) the petition. In addition, an employer can submit a labor certification to the DOL on behalf of the person seeking Section 245(i) relief. Both petitions and applications must be submitted on or before April 30, 2001. The INS or DOL does not have to approve the petition or application by that date. It just needs to be filed by April 30, 2001.
Legal permanent residents can petition for their spouses and unmarried sons and daughters (of any age). U.S. citizens can petition for their spouses, married and unmarried sons and daughters of any age, parents, and brothers and sisters.
It is important to know that battered immigrant spouses can submit petitions for themselves, as can applicants for national interest waivers.
7. Do people have to adjust status using the same category in which they petitioned?
No. It is important that people eligible to use Section 245(i) file their petitions and applications before April 30, 2001 using the eligibility they have at the time they file the petition. This initial filing preserves the ability to adjust! People can switch to another category when they become eligible for that category if that switch allows them, for example, to more quickly adjust their status.
8. What is the fee and when must it be paid?
The Section 245(i) fee is $1,000, and is in addition to any other filing fees the INS and DOL charge. In most cases, this fee does not have to be paid when relatives or employers submit the visa petition or labor certification on or before April 30, 2001. Rather, it is usually due later, when people adjust their status and become permanent residents. Thus, the $1,000 fee usually needs to be paid at the time of filing the Form I-485A, which is submitted along with the standard application for adjustment of status (Form I-485).
9. Does the new Section 245(i) grant work authorization, protection from deportation, or travel permission?
NO! Section 245(i) only allows people who illegally entered the United States or are out of status for various reasons to adjust their status in the U.S. if they are otherwise eligible. It offers no other protections or rights.
10. What can people do to make sure they take advantage of this new opportunity?
It is vitally important that people seeking Section 245(i) benefits seek advice from the people who can really help them: immigration lawyers and clinics with the expertise and knowledge to get the job done correctly. People who use notarios endanger themselves and their families and may end up, due to incorrect advice, being unable to use Section 245(i), out of luck and still out of status!
Copyright © 2001, American Immigration Lawyers Association