Congress Passes "LIFE" Bill

IMMIGRATION LAW & POLICY

Obtaining Lawful Permanent Residence Status

CONGRESS PASSES "LIFE" BILL, WITH 3-YEAR UPDATE OF 245(i) PETITION DEADLINE, TEMPORARY VISAS FOR SOME FAMILY VISA APPLICANTS, AND LEGALIZATION FOR "LATE AMNESTY" CLASS MEMBERS
Immigrants' Rights Update, Vol. 14, No. 8, Dec. 27, 2000

In the waning days of the recently completed congressional term, the House of Representatives and Senate passed the Legal Immigration and Family Equity Act (LIFE) as part of the Commerce Justice State Appropriations bill. President Bill Clinton signed it into law on Dec. 21, 2000. LIFE was originally offered by the Republican leadership as an alternative to the broader Latino and Immigrant Fairness Act (LIFA), which the Clinton administration had supported (see "Congress, Administration Still Wrangling over Immigration Bill; Republicans Propose More Limited Version," Immigrants' Rights Update, Nov. 28, 2000, p. 3). Prior to the pre-election congressional recess the administration had threatened to veto the appropriations bill if it was enacted without LIFA. However, in the altered political climate following the election, Republicans and Democrats settled for passing the narrower LIFE legislation, with some amendments.

LIFE, as amended, (1) extends the petition deadline by which individuals may qualify to adjust their status under section 245(i) of the Immigration and Nationality Act; (2) creates new temporary visas for certain family-based immigrant petition beneficiaries; (3) creates a new legalization program for certain class members in three "late amnesty" class action lawsuits and a Family Unity status for their spouses and children; and (4) amends the Nicaraguan Adjustment and Central American Relief Act (NACARA) and the Haitian Refugee Immigrant Fairness Act (HRIFA) to provide some waivers, make reinstatement of removal inapplicable to eligible immigrants, and allow motions to reopen that would otherwise be untimely, in those cases where these amendments make immigrants eligible for adjustment, suspension, or cancellation.

Section 245(i) Petition/Application Deadline Moved up to Apr. 30, 2001, but Only for Immigrants Who Were Present in the U.S. on DEC. 21, 2000. Section 245(i) of the INA allows immigrants who entered the U.S. without inspection who qualify for immigrant visas to adjust to lawful permanent resident (LPR) status in the U.S., provided that they pay an additional charge (currently $1,000). Without section 245(i), such immigrants would have to apply for visas at U.S. consulates abroad. This requirement poses a particular problem for immigrants who have been "unlawfully present" in the U.S. for a period of more than six months. If such individuals leave the U.S. and seek reentry, they are inadmissible for three years (and for those with unlawful presence over one year, there is a ten-year bar). In 1997 Congress enacted a phased termination of section 245(i), providing that adjustment under this section is available only to individuals who are beneficiaries of an immigrant visa petition or labor certification application that was filed on or before Jan. 14, 1998 (for details on the interpretation of this deadline, see "INS Issues Guidance on Accepting Adjustment Cases Under § 245(i)," Immigrants' Rights Update, May 28, 1999, p. 4).

LIFE replaces section 245(i)'s Jan. 14, 1998, deadline for having a petition or application filed with a new date—Apr. 30, 2001. However, LIFE also imposes a new requirement. The beneficiary must have been physically present in the U.S. on the date LIFE was enacted—Dec. 21, 2000.

New V Visas for Certain Spouses and Minor Children of LPRs. The new law creates two new temporary visas for some categories of immigrants who are in the process of obtaining LPR status based on family relationships. The V visa is for spouses and minor children of LPRs who are beneficiaries (including derivative beneficiaries) of immigrant visa petitions (Form I-130) under the Family 2A preference category filed on or before Dec. 21, 2000. The immigrant is not eligible for the V visa until at least three years have elapsed since the petition was filed.

The new law allows individuals who are in the U.S. to adjust to V visa status if they apply for the status and are eligible for it. Applicants for V visa status must be admissible, but certain grounds of inadmissibility do not apply to them. The inapplicable grounds are those enumerated in the following paragraphs of INA section 212: (6)(A) (presence in the U.S. without having been admitted or paroled); (7) (lack of documents authorizing admission); and (9)(B) (having been "unlawfully present" in the U.S. for a period of six months or one year and then seeking admission after a departure).

If the visa petition on which V status is based is denied, the status terminates 30 days after the denial. The status also terminates 30 days after the denial of an application for an immigrant visa or an adjustment application based on the petition.

LIFE also requires the attorney general to grant employment authorization to V visa holders and to issue them a document establishing their employment authorization.

New K Visas for Certain Spouses and Children of Citizens. The new law expands the K visa, which currently is limited to fiancé(e)s of U.S. citizens, to include spouses and children of U.S. citizens who are beneficiaries of immediate relative visa petitions. An immigrant visa petition must be filed before the K visa may be issued. If the marriage on which the petition is based occurred abroad, the K visa must be issued by a consular official in the country where the marriage was concluded. K visa holders are authorized to work in the U. S. 8 C.F.R. § 274a12(a)(6).

If the visa petition on which this status is based is denied, the status terminates 30 days after the denial. The status also terminates 30 days after the denial of an application for an immigrant visa or an adjustment application based on the petition.

The provisions of LIFE regarding K visas took effect on the date of the law's enactment and apply to beneficiaries of immigrant visa petitions whether the petition was filed before, on, or after the law's enactment.

Legalization for "Late Amnesty" Class Members. The new law establishes a procedure to legalize certain class members in three class action cases that challenged the INS's implementation of the legalization provisions of the Immigration Reform and Control Act of 1986 (IRCA). To be eligible for this legalization, individuals must have filed, prior to Oct. 1, 2000, a written claim for class membership in Catholic Social Services, Inc. v. Meese (CSS), vacated sub nom. Reno v. Catholic Social Services, Inc., 509 U.S. 43 (1993), League of United Latin American Citizens v. INS (LULAC), vacated sub nom Reno v. Catholic Social Services, Inc., 509 U.S. 43 (1993), or Zambrano v. INS, vacated sub nom Immigration and Naturalization Service v. Zambrano, 509 U.S. 918 (1993).

The new legalization program is a modified version of the 1986 legalization. There is no temporary resident step, but eligible individuals must apply for adjustment to permanent residence within 12 months of the date on which the AG issues final regulations implementing the law. Applicants must establish that they entered the U.S. before Jan. 1, 1982, and that they continuously resided in the U.S. in an unlawful status since that date and through May 4, 1988.

Applicants must also establish that they were continuously physically present in the U.S. from Nov. 6, 1986, to May 4, 1988. The new law provides that brief, casual, and innocent departures do not interrupt continuous physical presence. Applicants need not have obtained advance parole in order to establish that their departures did not interrupt their continuous physical presence.

Applicants must also establish that they are admissible. Section 245A(d)(2) of the INA, which provides that some grounds of inadmissibility do not apply to legalization applicants and that some others may be waived, also applies to these applicants. In addition, the new law gives the AG authority to waive the grounds of inadmissibility that apply to persons who have previously been ordered deported and the ground applying to those who enter the U.S. without inspection after having accrued a year of "unlawful presence." INA § 212(a)(9)(A) and (C)). LIFE also provides that reinstatement of removal under INA section 241(a)(5) does not apply to immigrants who are applying for adjustment under the new law.

Applicants must also show that they have not been convicted of any felony, or of three or more misdemeanors. If they were required to register under the Military Selective Service Act (for males between the ages of 18 and 26), they must show that they did so. Applicants must either meet the English language and civics requirements for naturalization (i.e., a minimal understanding of ordinary English and a knowledge and understanding of U.S. history and government), or they must be satisfactorily pursuing a course of study recognized by the AG as constituting an effort to obtain this understanding.

The new law provides that immigrants who have presented a prima facie application for adjustment during the application period may not be deported and shall be granted employment authorization. They also may make "brief, temporary trips abroad occasioned by a family obligation" and shall be permitted to return to the U.S. following such trips. In cases where an eligible immigrant is apprehended by the INS before the beginning of the application period, the immigrant may not be deported if he or she can establish a prima facie case of eligibility for adjustment. The immigrant must also be given employment authorization and the opportunity to file an adjustment application during the first 30 days of the application period.

The confidentiality provisions of INA section 245A(c)(5) apply to these applications, except that information furnished may be used for purposes of rescinding adjustment of status.

The five-year bar to the receipt of certain public benefits that applied to immigrants who legalized under the 1986 IRCA legalization does not apply to applicants for this legalization program.

LIFE also provides that the AG shall establish a procedure under which individuals not in the U.S. who have become eligible for adjustment under the new law can apply for adjustment from abroad. The law also requires the AG to establish a procedure for individuals who become LPRs through this legalization program and who have a spouse or child abroad eligible for Family Unity (as discussed below) to have the relative(s) paroled into the U.S.

The new law excludes eligible immigrants from the restriction on federal court jurisdiction over legalization cases enacted as part of the Illegal Immigration Reform and Immigrant Responsibility Act of 1996 (IIRIRA). As was the case with the IIRIRA provision, this exclusion is effective "as of November 6, 1986." LIFE provides that administrative and judicial review of legalization under the new program is governed by INA section 245A(f)(4).

The new law establishes a Family Unity program for the spouses and minor children of immigrants who are eligible to adjust under the late amnesty legalization program. The spouse or child must have entered the U.S. before Dec. 1, 1988, and resided in the U.S. on that date. The statute does not require that the relationship have existed on that date. To be eligible for Family Unity, an individual must not have a felony conviction, or three or more misdemeanor convictions.

Amendments to NACARA and HRIFA. LIFE amends section 202 of NACARA (concerning adjustment for Nicaraguans and Cubans) and HRIFA (concerning adjustment for Haitians) by giving the AG authority to waive the grounds of inadmissibility applying to persons who have previously been ordered deported and the ground applying to those who enter the U.S. without inspection after having accrued a year of "unlawful presence." INA § 212(a)(9)(A) and (C)). The new law also provides that reinstatement of removal under INA section 241(a)(5) does not apply to immigrants who are applying for adjustment under these laws. Likewise, reinstatement of removal does not apply to applicants for suspension of deportation or cancellation of removal under section 203 of NACARA (applicable to Salvadorans, Guatemalans, and Eastern Europeans).

Under LIFE individuals who become eligible for adjustment, suspension, or cancellation as a result of these amendments are permitted to file one motion to reopen. They may do so without regard to the normal time and number limitations on such motions. Under HRIFA and section 202 of NACARA, the motion to reopen must be filed within 180 days of the enactment of LIFE—i.e., by June 19, 2001. A motion to reopen to apply for NACARA section 203 suspension or cancellation must be filed during a period to be designated by the AG. This period must begin no later than Feb. 19, 2001, and the period may not exceed 240 days in length.