INS Issues Guidance on Adjudications-Related Provisions of USA Patriot Act

IMMIGRATION LAW & POLICY

Obtaining Lawful Permanent Residence Status

INS ISSUES GUIDANCE ON ADJUDICATIONS-RELATED PROVISIONS OF USA PATRIOT ACT
Immigrants' Rights Update, Vol. 16, No. 3, May 30, 2002

The Immigration and Naturalization Service has issued policy guidance and field instructions regarding the provisions of the Uniting and Strengthening America by Providing Appropriate Tools to Intercept and Obstruct Terrorism (USA PATRIOT) Act of 2001 that relate to adjudications. The USA PATRIOT Act provided special immigrant status (allowing adjustment to lawful permanent residence status) to immigrants and their dependents whose visa petitions or labor certification applications were revoked or terminated because the attacks resulted in the death or disability of the petitioner or the loss of employment. The act also granted special immigrant status to grandparents of children who lost both parents in the terrorist attacks of Sept. 11, 2001. In a number of circumstances, the act also allows individuals to have their applications or petitions for immigration status adjudicated despite the fact that the petitioner or principal beneficiary was killed. The act also temporarily extended many adjudications-related deadlines. The guidance is contained in a memorandum issued by INS Executive Associate Commissioner Michael Pearson on Mar. 8, 2002.

Special Immigrant Status. The memo notes that three groups of immigrants are eligible for special immigrant status under the USA PATRIOT Act. The first group consists of principal immigrants who are beneficiaries of immigrant visa petitions, fiancé(e) petitions, or labor certification applications that were filed on or before Sept. 11, 2001, and that have been revoked, terminated, or otherwise nullified because of a terrorist attack on Sept. 11. The attack must have resulted in the death or disability of the petitioner, applicant, or beneficiary, or the loss of employment due to physical damage to or destruction of the business of the petitioner or applicant. The second group consists of spouses and children of immigrants who were such principals' beneficiaries. The relationship of spouse or child must have existed on Sept. 10, 2001, and the spouse or child must "follow to join" (immigrate based on the derivative relationship) by Sept. 11, 2003. Even if the principal beneficiary has died, the law allows the spouse and child to immigrate as if the death did not occur. The third group of special immigrants consists of the grandparents of children whose parents both died as a result of the Sept. 11 attacks, as long as either parent was a citizen or national of the United States or a lawful permanent resident on Sept. 10, 2001.

The memo provides that immigrants who fall within any of the three categories described above may apply for benefits by filing INS Form I-360, Petition for Amerasian, Widow(er) or Special Immigrant, with the INS office having jurisdiction over the immigrant's place of residence. They should indicate in Part II, Box K, of the petition that they are applying for benefits under the USA PATRIOT Act and indicate the specific reason why they qualify (e.g., as principal, spouse/child of principal, or grandparent).

Petitioners should include evidence that demonstrates their eligibility, including proof of the death, disability, or loss of employment due to physical damage resulting from a Sept. 11 attack. Proof of a petition or application that was revoked or terminated may include a statement describing it, a receipt issued by the INS, or other evidence. The memo requires that grandparents who are self-petitioning show that they are coming to the U.S. to assume legal custody of the orphaned grandchild before the child turns 21 years of age, or that the child was under age 18 at the time the petition was filed and is not now older than 21.

Once the self-petition is approved, the petitioner may file Form I-485, Application to Register Permanent Residence or Adjust Status, with all supporting documents. At the time of filing for adjustment, the applicant may also apply for work authorization.

Relief for Surviving Spouses and Children. Under section 423(a) of the act, if a U.S. citizen was killed as a direct result of a Sept. 11 attack, his or her spouse and/or children continue, for a two-year period, to be considered "immediate relatives" for purposes of petitioning for permanent residence. However, a surviving spouse who was legally separated from the decedent when the latter died or who has since remarried cannot take advantage of this provision. Children of attack victims continue to be considered immediate relatives for this two-year period even if they marry or reach 21 years of age. The memo provides that in order to benefit from this provision, immigrants must file an I-130 petition within two years of the death of the citizen. Each individual must file a separate petition. On it, the petitioner should indicate "USA PATRIOT Act, Section 423(a)" in Box A, for Relationship.

Under section 423(b) of the act, if an LPR who was killed as a direct result of a Sept. 11 attack had a pending petition on behalf of a spouse, child, or unmarried son or daughter, the petition remains valid and the beneficiary retains his or her priority date despite the death of the petitioner. Beneficiaries in this case may apply for deferred action status in order to remain in the U.S. and have employment authorization until they can apply for adjustment. They may also be eligible for the special immigrant benefits described above. The spouse, child, son, or daughter of an LPR killed in a Sept. 11 attack who does not have a pending visa petition may file a petition and have it adjudicated as if the LPR petitioner were still alive. To do so, such persons should file an I-130 petition with the INS service center having jurisdiction over their place of residence, with evidence to establish eligibility under this provision. While waiting for their priority date to be reached, they may apply for employment authorization and deferred action status.

Surviving spouses and children of employment-based LPRs or of applicants for adjustment based on employment who were killed as a direct result of a Sept. 11 attack may have their adjustment applications adjudicated as if the death did not occur, as long as their adjustment applications were filed on or before Sept. 11, 2001. No new application or petition need be filed.

In all of the above cases, the public charge ground of inadmissibility does not apply, and no I-864 affidavit of support is required.

Temporary Extension of Adjudications-related Deadlines. In addition to these provisions, the USA PATRIOT Act also extended a number of deadlines for various categories of non-U.S. citizens. The memo notes that because the guidance is being issued after many of these extensions have passed, "it is unlikely that many aliens remain able to benefit" from these particular extensions. The extensions that have already passed include:

a 60-day extension for nonimmigrants who were prevented from filing a timely application for extension of stay or change of status because of the Sept. 11 terrorist attacks;
an extension of immigrant visas to Dec. 31, 2001, for immigrants whose visas had expiration dates prior to that date but who were unable to enter the U.S. prior to the expiration of their visas as a direct result of the Sept. 11 terrorist attacks;
a 90-day extension of parole, including advance parole, where a grant of parole expired on or after Sept. 11 and the noncitizen was unable to return to the U.S. prior to the expiration of the parole because of the Sept. 11 attacks; and
a 30-day extension of voluntary departure for immigrants whose grant of voluntary departure expired between Sept. 11 and Oct. 11, 2001. In these cases the extension is automatic and the noncitizen does not have to demonstrate that the delay in departure was due to a Sept. 11 attack. A departure within 30 days of the voluntary departure deadline is deemed a timely departure.

Another extension included in the act applies to noncitizens who were lawfully present in the U.S. on Sept. 10, 2001, in a nonimmigrant status and who were disabled as a result of a Sept. 11 attack. They may continue in that status for a period of one year after the disability occurred. If their status as documented on Form I-94 is valid for a longer period, it continues to be valid. A similar provision extends the status of nonimmigrants who were the dependent spouses or children of nonimmigrants who died or were disabled as a result of the Sept. 11 attacks. Individuals who are eligible for these extensions must apply for an extension with the appropriate INS service center. Under the statute, all nonimmigrants subject to this extension are employment authorized and must be issued an employment authorization document (EAD) within 30 days of their applying for it by the local INS district office.

The act also extends to Apr. 1, 2002, the deadline for using a diversity visa immigrant visa number, for individuals who were unable to use a fiscal year 2001 diversity visa number by Sept. 30, 2001, because of the Sept. 11 attacks. Under the act, spouses and children of noncitizens who were issued a FY 2001 diversity visa number and who died because of a Sept. 11 attack are deemed to retain their dependent status as if the death did not take place, until June 30, 2002. The memo instructs ports of entry to admit applicants for admission who are eligible for benefits under this extension.

Age-out Benefits for Certain Children. The act also allows noncitizen beneficiaries of visa petitions or adjustment applications filed on or before Sept. 11 who turned 21 years of age after Sept. 11 to be considered as if they were children for an additional 45 days. In effect, this extends the time in which the INS may grant adjustment. This extension is not limited to individuals who were directly affected by the Sept. 11 attacks.

Temporary Administrative Relief. The act also authorizes the attorney general to grant temporary administrative relief to any noncitizen who was lawfully present in the U.S. on Sept. 10, 2001, and who was the spouse, parent, or child a person who died or was disabled as a direct result of a Sept. 11 attack. The memo provides that such relief in the form of deferred action status and employment authorization will be provided on a case by case basis to individuals who apply for it.

Memorandum to Regional Directors from Michael A. Pearson, Executive Associate Commissioner Office of Field Operations, HQADN 70/23.1 (Mar. 8, 2002), reprinted at 79 Interpreter Releases 485 (Apr. 1, 2002).