RECENT LAW BREATHES NEW LIFE INTO THE PLIGHT OF FOREIGN NATIONALS SEEKING GREEN CARDS
AND FAMILY REUNIFICATION
By: Richard T. Herman, Esq.
Vania T. Stefanova, Esq.
Immigrants have won a small but significant battle in the xenophobic war that Congress and the Immigration and Naturalization Service have been waging on foreign nationals in this country since the mid-1990s. In an attempt to ameliorate some of the harshness of the Illegal Immigration Reform and Immigrant Responsibility Act ("IIRAIRA") passed in 1996, and in recognition that immigration law should facilitate family reunification, on December 21, 2000 President Clinton signed into law a new immigration reform act entitled The Legal Immigration and Family Equity Act ("LIFE"). Although not as sweeping as hoped by immigrants rights advocates, the new law will positively affect many immigrants, as well as U.S. citizens and permanent residents.
The main effect of LIFE will be felt by the many undocumented foreign individuals who will be able to remain in this country and adjust status (i.e., obtain permanent residency or "green card" in the United States, without departing the country for overseas consular processing). The new act will also help some long-waiting spouses and minor children of permanent residents to enter or stay in the U.S. with their families and work. Under the new law some U.S. citizens will be allowed to bring over their foreign spouses faster than the current processing times allow.
WHAT ARE THE NEW LIFE REGULATIONS?
and allows individuals on behalf of whom a Labor Certification Application, I-130, I-140, or I-360 Petitions ARE FILED BY APRIL 30, 2001 to adjust status (obtain "green card" in the United Status).
WHAT IS THE NEW SECTION 245(i) PROVISION?
Individuals who were present in the United States on December 21, 2000 and file certain petitions on or before April 30, 2001 will be allowed to adjust status in the U.S. by paying a fine of $1000, regardless of whether they entered illegally or overstayed, or otherwise violated the terms of their nonimmigrant visas.
How does LIFE change the pre- December 21, 2000 adjustment law
The pre-LIFE regulations contained in INA Section 245 (8 CFR Section 245.1 to 245.12) barred adjustment of status to individuals who entered illegally, overstayed, or in any other way violated the terms and conditions of their immigration status or visas. INA Sections 245(a) and 245(c). In the above circumstances, even if an individual was the beneficiary of an approved immigrant petition that normally would allow him to obtain permanent residence, he would have to apply for immigrant visa at a U.S. consulate abroad, usually in the country of last residence or nationality. Narrow exceptions were carved out by INA Section 245(c)(2) for immediate relatives who entered with inspection (spouses, unmarried children under 21 of all U.S. citizens, and parents when the U.S. citizen petitioner is at least 18 years of age); also, for special immigrants under Sections 101(a)(27)(H), (I), (J), or (K); and under Section 245(k) for some employment-based immigrants.
Apart from such practical considerations as expense, dislocation and separation from family members that favor adjustment of status over consular processing, there are two major reasons why consular processing was prohibitive to many immigrants on the verge of obtaining permanent residence.
Firstly, consular processing provides less protection in case of denial. Secondly, and most importantly, INA Section 212(a)(9)(B), as amended by Section 301(b) of IIRAIRA, created a draconian bar to admissibility to the U.S. for foreign individuals who overstayed their visas or status with more than 180 days and departed the country. Subject to some narrow exceptions, tolling provisions and waivers, such individuals are barred from reentering the U.S. for 3 years if they have been unlawfully present for more than 180 days and less than a year, and are barred from reentering for 10 years if they have been unlawfully present of over a year.
LIFE temporarily extends INA Section 245(i) which allowed adjustment of status even in cases of illegal entry, overstays, and other violations of nonimmigrant visas upon payment of a one-thousand-dollar fine for individual who had filed certain papers by January 14, 1998. The new deadline for filing these papers under LIFE is April 30, 2001. Qualified individuals do not need to depart the U.S. to obtain permanent residence and thus trigger the inadmissibility grounds of INA Section 212(a)(9)(B).
Who benefits from the new Section 245(i):
This law will also give an additional opportunity to adjust status to people who filed an application for asylum and thus remained in the U.S. after the date indicated on their I-94 forms (white cards). Although applicants for asylum are in this country with the knowledge of the immigration authorities and are given right to work, the immigration authorities have consistently ruled that such applicants are not in a status necessary to adjust status in any other way but an approval of their application for asylum, (subject to the same exceptions under 245(c)(2) and 245(k)). If asylum applicants with pending asylum applications have certain relatives in this country, a job offer, or exceptional achievements, they should consider filing one of the qualifying petitions.
Finally, even individuals who are currently in status and are contemplating staying permanently in this country may also consider filing prior to April 30, 2001 for future protection and peace of mind. However, in all cases we will advise against filing hasty, frivolous, and improperly prepared petitions, which will only backfire by being denied and may cause other problems.
What papers need to be filed by April 30, 2001. One or more of the following:
The importance of the deadline:
The above papers, correctly filled out and accompanied by the correct fee must reach the government agency on or before April 30, 2001. The petitioners should plan in advance and allow for mailing time, as well as for eventual return for incorrect filing (e.g. improper fee, failure to enclose mandatory documentation, unanswered questions, etc.).
Important new physical presence requirement:
Individuals filing under the new 245(i) provision must prove to the INS that they were physically present in the U.S. on the date of enactment of LIFE, that is December 21, 2000. Thus, one is advised to collect any proof of his or her presence in this country on or before December 21, 2000, e.g. letters, bills, bank statements, credit card receipts, any document or receipt with the applicantís name on it.
A joint memorandum by Senators Kennedy (D-MA) and Abraham (R-MI) clarifies that the function of the physical presence requirement is to make sure that the renewed availability of 245(i) adjustment does not encourage individuals to enter illegally the U.S. in order to apply. The memorandum also recognizes the fact that it may be difficult for many individuals to provide proof of physical presence on this particular day. The memorandum advises the INS to be flexible in the types of evidence it will accept, such as evidence demonstrating that the applicant has been physically present during a reasonable period preceding December 21, 2000, accompanied by an affidavit that the person was present on the date itself.
The one-thousand-dollar fee:
The $1000 fee is in addition to any other regular INS filing fees. It is to be submitted with the Application to Adjust Status, form I-485, not with the above petitions. In most cases (except immediate relative petitions) the Application to Adjust Status is filed after the approval of the above petitions.
Do applicants have to adjust status using the same category in which they petitioned?
Under the current INS interpretations dealing with the same situation which occurred with the January 14, 1998 sunset of the old 245(i), the initial filing by April 30, 2001 will preserve the eligibility to adjust, even if an individual switches later to another category.
For example, Aís employer files a Labor Certification by April 30, 2001. A month later Aís parent becomes a U.S. citizen and files an I-130 Immigrant Petition for Alien Relative, after the LIFE deadline. The family petitionís priority date becomes current before Aís Labor Certification or Petition for Immigrant Worker are approved, and he becomes eligible to file for adjustment of status based on the family petition. A may apply under the family category even though the initial filing was employment-based.
The new 245(i) does not provide employment authorization, protection from removal (previously deportation and exclusion), or travel permission.
A person will be eligible for employment authorization in most cases only upon approval of the above petitions and filing of an Application to Adjust Status. The INS may still choose to place an alien without status in removal, and removal proceedings will not be terminated based on the LIFE act. It will be up to the INS and an Immigration Judge to continue or terminate removal proceedings to allow people with sympathetic circumstances to adjust status under the new law. People out of status are not advised to travel abroad, especially if they have overstayed by more than 180 days. The 3 and 10- year bars to admissibility to the U.S. will be triggered. The new law only gives a right to adjust status to people who are in the U.S. and stay in the U.S.
It is also important to note that the new law does not change in any other way the grounds of removability (inadmissibility or deportabitlity) under INA sections 212 and 237, e.g. criminal convictions, fraud, relating to public charge, etc. It only removes the bars to adjustment contained in Section 245 dealing with entry without inspection, overstays, and violations of nonimmigrant status. Thus, for example, if at an adjustment interview, a person is found to have committed a removable crime, the person will not be able to adjust under LIFE and most likely will be placed in removal proceedings.
WHAT IS THE NEW "V" VISA FOR SPOUSES AND MINOR CHILDREN OF PERMANENT RESIDENTS?
The new V visa allows the spouses and minor children (unmarried children under 21 years of age) of lawful permanent residents (Family 2A category only), who have been waiting more than 3 years for a green card, to enter the United States and be granted employment authorization.
At present the period of waiting for the right to apply for immigrant visa or adjustment of status for this category of relatives is four and a half years (six years for nationals of Mexico). While waiting, the 2A beneficiaries of family petitions are not allowed to stay in the U.S. solely on the basis of the family petition. The new LIFE provisions are a fair attempt to ameliorate the obvious hardship to U.S. lawful permanent residents and their families.
Special protection in cases of unlawful presence:
The new law provides that periods in the U.S. in unlawful status will not prevent someone from obtaining a V visa abroad or change to V status if in the U.S. When the priority date is current, the beneficiary may file to adjust status under the new 245(i) regardless of any unlawful stay.
WHAT IS THE NEW K (FIANCE(E)) VISA FOR SPOUSES
OF U.S. CITIZENS?
Spouses (and accompanying or following to join minor children) of U.S. citizens who are abroad and waiting for the approval of their immigrant Petitions for Alien Relative will be eligible to apply for more quickly obtainable K visas and enter, wait for approval, and work in the U.S.
Previously K visas were available only for the purpose of entering the U.S. in order to marry a U.S. citizen within 90 days. With this new provision LIFE addresses the severe backlog and long processing times of petitions for alien relatives for spouses, whose approval can take anywhere between 170 and 600 days, depending on the INS Service Center jurisdiction. Generally, K petitions are at present approved more quickly.
Section 1103(b) of the LIFE act, amending INA Section 214 provides, that an alien seeking admission under the newly created K category (new INA section 101(a)(15)(K)(ii)) who concluded a marriage with a citizen of the U.S. outside of the U.S., will be inadmissible under INA Section 212(a)(7)(B) [as an alien not in possession of a valid nonimmigrant visa], if the alien is not in possession of a valid nonimmigrant visa issued by a consular officer in the foreign state in which the marriage was concluded.
Thus, it seems that the new law deviates from the accepted practice that visas are issued by the U.S. consulate located in the alienís country of last residence or nationality, and requires that the new-category K visa is issued in the country where the marriage took place. How the State Department will address cases where the marriage took place in a third country during a brief visit by the U.S. citizen and the foreign national, and is not practicable for the foreign national to travel to that country for consular processing, remains to be seen.
Unlike the V visa, K visa will be available to both current and future applicants. As mentioned before, the new K visa holders will be permitted to apply for employment authorization in the U.S.
ADJUSTMENT OF STATUS FOR LATE LEGALIZATION CLASS MEMBERS AND PROTECTION FROM REMOVAL AND WORK AUTHORIZATION TO THE SPOUSES AND MINOR CHILDREN
Foreign individuals who were part of certain class action lawsuits against the INS stemming from improper handling of their 1986 amnesty papers by the INS will be allowed to adjust status under the LIFE act.
Who is eligible:
Relief under the law:
Consistent with laws passed in 1990, the LIFE act prevents the removal of the spouses and minor children (unmarried children under 21 years of age) of a person who is applying for late legalization under this law and provides for employment authorization of such family members.
To be eligible for protection from deportation and employment authorization, the spouses or minor children must meet the following requirements:
Caveat on the removal protection:
Eligible spouses and minor children will be protected only from removal stemming from violations of status in the U.S., e.g. overstays, employment without authorization. Such individuals will still be deportable on other grounds, such as criminal convictions.
WAIVERS AND PROTECTIONS FROM REMOVAL FOR APPLICANTS UNDER NACARA AND HRIFA
The new act provides the following relief for applicants under NACARA and HRIFA:
This legislation may be a lifesaver for many immigrants. This law is expected to help over 1,000,000 immigrants. However, it is important to note that many immigrants will be left behind unless they apply before April 30, 2001.
Finally, as immigrant rights advocates, we are pleased to see this first step by the government to promote fair, humane, and effective immigration law and policy. However, much more needs to be done.
The biggest challenge in reforming immigration law so that it comports with due process and common notions of fairness is changing the harshest provisions of IIRAIRA, which include the following: bars to judicial review; massive retroactive expansion of definition of "aggravated felony" under the Immigration and Nationality Act; elimination of 212(c) relief from deportation for permanent residents classified as aggravated felons; mandatory detention, without a bond hearing, for a wide class of individuals including those with nonviolent crimes, crimes that occurred in the distant past, and crimes for which no sentence was served; indefinite detention that could last years while the alien contests the charges of deportation; permission for the government to use "secret evidence" in prosecuting deportations; and bars to reentering the U.S. for 3 and 10 years for unlawful presence in the U.S..
Other changes in law that are sought by immigrant rights advocates include: permanent restoration of Section 245(i) and updating the registry date ("amnesty") from 1972 to a more current date (which the AFL-CIO now supports; and which Cleveland City Council now supports as evidenced by an Emergency City Council Resolution dated October 23, 2000).
The immigrant communities are also anxiously awaiting to see how the George W. Bush Administration approaches immigration issues. During the presidential campaign, President-Elect Bush announced that he would restructure the Immigration and Naturalization Service, stating that "[w]e will bring to the INS a new standard of service and culture of respect." President-Elect Bush proposes to introduce a 6-month standard for processing immigration applications (which currently can take many years). He also proposes to split the INS into two separate agencies, one focused on law enforcement (there are more armed agents in the INS than in any other federal agency) and the other focused on the administration of benefits and services. President-Elect Bush also proposes to introduce performance incentives for INS employees to process cases quickly and make customer satisfaction a priority. Finally, President-Elect Bush proposes an additional $500 million over 5 years to fund new INS personnel and improve the level of service.
Two former U.S. presidents remind us of this countryís immigrant legacy and future. John F. Kennedy said that "[e]verywhere immigrants have enriched and strengthened the fabric of American life." Franklin D. Roosevelt said: "Remember, remember always, that all of use, and you and I especially, are descended from immigrants and revolutionists." America is currently undergoing a radical ethnic and cultural revolution that is being fueled by a new world economy and new waves of immigration. The best, brightest, and hardest working people are moving to the U.S. The U.S. Census conservatively indicates that the foreign-born population in the U.S. is now about 9%. Projections over the next 25 years, indicate that the foreign-born population in the U.S. will comprise between 15% to 20% of our entire population. Immigration policy-makers now have no choice but to listen to the rising voice of this growing immigrant constituency.
Note about the authors: Richard Herman and Vania Stefanova are attorneys at Richard T. Herman & Associates, a multi-lingual law firm with a concentration in corporate and family immigration law, as well as a general law practice serving immigrant and ethnic minority communities throughout Ohio.