Attorney General Issues Interim Rule Governing Applications for "Late Legalization" under the LIFE Act

IMMIGRATION LAW & POLICY

Obtaining Lawful Permanent Residence Status

ATTORNEY GENERAL ISSUES INTERIM RULE GOVERNING APPLICATIONS FOR "LATE LEGALIZATION" UNDER THE LIFE ACT
Immigrants' Rights Update, Vol. 15, No. 4, June 29, 2001

The attorney general has issued interim regulations that establish the procedure for the filing and adjudication of "late legalization" applications under the Legal Immigration Family Equity (LIFE) Act and the LIFE Act Amendments. The Immigration and Naturalization Service estimates that 440,000 individuals may be eligible for LIFE legalization. The regulations also establish procedures for certain family members of LIFE Act beneficiaries to apply for Family Unity status under the act. The regulations took effect on June 1, 2001.

Eligibility for LIFE legalization. Under the LIFE Act, in order to be eligible for legalization, individuals must have filed a written claim for class membership prior to Oct. 1, 2000, in one of three lawsuits that challenged the INS implementation of the 1986 legalization program. The three lawsuits are Catholic Social Services, Inc. v. Meese, vacated sub nom. Reno v. Catholic Social Services, Inc., 509 U.S. 43 (1993) (CSS); League of United Latin American Citizens v. INS, vacated sub nom. Reno v. Catholic Social Services, Inc., 509 U.S. 43 (1993) (LULAC); and Zambrano v. INS, vacated, 509 U.S. 918 (1993) (Zambrano). Individuals who applied for class membership and had their applications denied by the INS nevertheless may apply for LIFE legalization.

To be eligible for LIFE legalization, applicants must also:

have entered the U.S. prior to Jan. 1, 1982;
have resided continuously in the U.S. in an unlawful status since that date through May 4, 1988;
have been physically present in the U.S. during the period from Nov. 6, 1986, through May 4, 1988;
be admissible to the U.S.;
have no conviction for a felony or for three or more misdemeanors committed in the U.S.; and
demonstrate basic citizenship skills or be pursuing a recognized course of study to obtain basic citizenship skills.

Applicants need not be currently residing in the U.S., and eligible individuals residing outside the U.S. may apply for LIFE legalization.

Application procedures. The interim regulations provide that applicants must apply for legalization under LIFE during the one-year period beginning June 1, 2001, and ending on May 31, 2002. To apply, applicants must submit Form I-485 (Application to Register Permanent Residence or Adjust Status), with all required documentation, a $330 filing fee, and a $25 fingerprinting fee, unless the applicant is exempt from the fingerprinting requirement because he or she is under 14 or over 75 years of age. The INS has decided to impose a $330 fee rather than the regular $220 fee for the I-485 because the agency has determined that the increased fee represents the actual current cost of adjudicating the I-485.

There is a special instruction sheet, Supplement D, LIFE Legalization Supplement to Form I-485, that addresses the requirements of the LIFE legalization application. The application must be accompanied by proof of identity, a report of medical examination, two photographs, evidence that the applicant filed a written claim for class membership in the CSS, LULAC, or Zambrano lawsuit, evidence to prove continuous residence in an unlawful status since prior to Jan. 1, 1982, and through May 4, 1988, evidence to prove continuous physical presence in the U.S. between Nov. 6, 1986, and May 4, 1988, evidence to establish the applicant's citizenship skills, and, unless the applicant is under 14 or over 79 years of age, a completed Form G-325A (Biographic Information Sheet).

Eligible individuals, whether currently living in the U.S. or outside the U.S., must apply for LIFE legalization by mailing their applications to the following post office box:

U.S. Immigration and Naturalization Service
P.O. Box 7219
Chicago, IL 60607-7219

The INS is adopting a special "postmark rule" for purposes of determining whether a LIFE legalization application has been timely filed (i.e., filed by May 31, 2002). Any application that is postmarked by the U.S. Post Office on or before May 31, 2002, will be considered timely filed, regardless of when it is actually received. Any application for which the postmark is illegible or missing will be considered timely filed if it is received by June 3, 2002, if it was mailed from within the U.S., or by June 14, 2002, if mailed from outside the U.S.

Only the INS has jurisdiction to adjudicate LIFE legalization applications, and the regulations provide that all such applications are under the jurisdiction of the Missouri Service Center, apparently a new office. Eligible immigrants who have pending exclusion, deportation, or removal proceedings may request that the proceedings be administratively closed to allow them to pursue LIFE legalization applications with the INS. Similarly, individuals who have motions to reopen or reconsider pending with the Board of Immigration Appeals or the immigration court may request that the motion be indefinitely continued. According to the interim rule, individuals requesting administrative closure or indefinite continuance of a motion must present, in support of their requests, documents demonstrating prima facie eligibility for LIFE legalization and proof that a LIFE legalization application was properly filed with the INS. The regulations provide that, where the applicant appears eligible, the immigration court or the BIA "shall administratively close the proceeding or continue the motion indefinitely."

According to the regulations, eligible immigrants who have final orders of deportation, exclusion, or removal may apply to the INS for LIFE legalization, and the filing of the application automatically stays the order. This stay remains in effect until there is a final decision on the LIFE legalization application, unless the district director (of the district where the INS seeks to execute the order) makes a formal determination that the applicant is not prima facie eligible for LIFE legalization because of criminal grounds or the applicant's having engaged in persecution. In such case the district director must serve the applicant with a written decision explaining the reason for the determination. This stay determination cannot be appealed.

All applicants for LIFE legalization must be interviewed, except for children under 14 years of age or individuals for whom the INS determines interviews are impractical because of the health or advanced age of the applicant. The director of the Missouri Service Center may forward cases to INS district offices for purposes of conducting interviews.

Evidentiary requirements. The regulations discuss the kinds of evidence that should be submitted with the application. Evidence of identity includes a passport, birth certificate, any national identity document from the applicant's country of origin that bears a photo and fingerprint, a driver's license or ID card issued by a state if it contains a photo, or a baptismal record/marriage certificate.

Evidence of written application for class membership in CSS, LULAC, or Zambrano before Oct. 1, 2000, may include: (1) an employment authorization document (EAD) or other employment document issued by the INS pursuant to one of these cases; (2) an INS document addressed to the applicant or to his or her representative granting or denying class membership and including a date and the individual's name and A-number; (3) the questionnaire for class member applicants under CSS, LULAC, or Zambrano, including the date, full name and date of birth; and (4) an INS document addressed to the applicant or to his or her representative discussing matters related to the individual's class membership application and including the date, the alien's name, and A-number. Such documents include Form I 512 (Parole Authorization), or denial of such; Form I-221 (Order to Show Cause); Form I 862 (Notice to Appear); final order of removal or deportation; a request for evidence letter (RFE); Form I-687 submitted with the class membership application; or any other relevant document.

The regulations also discuss the requirement of showing continuous residence in an unlawful status since prior to Jan. 1, 1982, through May 4, 1988. Existing regulations provide for a wide range of evidence that may be used to establish that the applicant has resided continuously in the U.S. 8 CFR § 245a.2(d)(3). The interim rule lists documents that may be used to show that such residence was unlawful, whether as a result of overstaying a nonimmigrant visa, violating a condition of a nonimmigrant visa, or entering the U.S. without inspection prior to Jan. 1, 1982. Nonimmigrants may establish that their unlawful status was known to the government by showing that documentation existing in one or more federal agencies' files, taken as a whole, would warrant a finding that the individual's status was unlawful. However, the regulations provide that the absence of an alien registration report does not warrant a finding that an individual's unlawful status was known to the government. Individuals who were granted voluntary departure, voluntary return, extended voluntary departure, or who were placed in deferred action category prior to Jan. 1, 1982, are considered to be in unlawful status. Also, for purposes of the LIFE Act, Cuban and Haitian entrants are considered to be in unlawful status.

An applicant will not be considered to have maintained continuous residence if he or she has a single absence of more than 45 days, or aggregate absences totaling over 180 days between Jan. 1, 1982, and May 4, 1988, unless he or she can establish that "due to emergent reasons, his or her return to the United States could not be accomplished within the time period allowed," the alien was maintaining residence in the U.S., and the departure was not based on an order of deportation.

For purposes of establishing continuous physical presence from Nov. 6, 1986, through May 4, 1988, the applicant must establish that any absence from the U.S. during this period was "brief, casual, and innocent." A single absence of more than 30 days, or aggregate absences exceeding 90 days, will be considered to break continuous physical presence unless the applicant establishes that "due to emergent reasons, his or her return to the United States could not be accomplished within the time period(s) allowed." However, an absence pursuant to a grant of advance parole will not be considered to interrupt continuous physical presence.

Applicants also must establish that they have a minimal understanding of ordinary English and a knowledge and understanding of the history and government of the U.S. These requirements do not apply to applicants who are unable to demonstrate that they meet the requirements because of a medically determinable physical or mental impairment that has or is expected to last for at least 12 months. The regulations incorporate the same standards for this exception as are set forth in 8 CFR sections 312.1(b)(3) and 312.2(b), which govern the similar requirements for naturalization applicants. The LIFE legalization English and civics requirements can also be waived for applicants who are 65 years old or older, and for applicants who are developmentally disabled.

Applicants can meet these requirements by satisfying the English and civics naturalization requirements of 8 CFR sections 312.1 and 312.2. Alternately, applicants may satisfy these requirements by submitting a general educational development (GED) diploma from a school in the U.S. (if the GED was gained in a language other than English, the applicant must also have passed a GED English proficiency test). The applicant may submit a high school diploma or GED either at the time of filing the application, subsequent to the filing, or at the time of the interview. As a third alternative, applicants may show that they have attended, or are attending, a state-recognized, accredited learning institution in the U.S., with a course of study for a period of one academic year or equivalent, and a curriculum that includes at least 40 hours of instruction in English and U.S. history and government. An applicant may submit certification on a letterhead stationary from the institution either at the time of filing, subsequent thereto, or at the time of the interview. Applicants who fail to pass the English literacy and/or U.S. history and government tests at the time of their interview will be given a second interview six months later, or earlier should they so request.

Inapplicable grounds of inadmissibility and waivers. The grounds of inadmissibility for not having a labor certification and for not having valid travel documents do not apply to LIFE Act applicants. Most of the other noncriminal grounds of inadmissibility can be waived.

The LIFE Act provides that the 3- and 10-year bars to admissibility for unlawful presence of INA section 212(a)(9)(B) do not apply to individuals eligible for LIFE legalization. Reinstatement of removal also does not apply to LIFE Act applicants. The statute also provides for a special waiver of the grounds of inadmissibility for having previously been deported or removed and for having entered the U.S. without inspection following a removal or a period of at least one year of unlawful presence (INA § 212(a)(9)(A) and (C)). To obtain this waiver, LIFE Act applicants must file Form I-690 (Application for Waiver of Grounds of Excludability Under Sections 245A or 210 of the INA) with the district director having jurisdiction over the applicant's case (if pending at a local office) or with the director of the Missouri Service Center.

The public charge ground of inadmissibility can be waived, but only for applicants who are aged, blind, or disabled. However, individuals who are determined to be inadmissible on public charge grounds may qualify for a "special rule" that allows them to be admitted. Under this special rule, applicants who have a consistent employment history of supporting themselves, albeit below the poverty level, are considered admissible. The employment history need not be uninterrupted, as long as the applicant has had an income over a substantial period and has "demonstrated the capacity to exist on his or her income without recourse to public cash assistance." Past receipt of public cash assistance does not disqualify an applicant but constitutes a significant factor in making the public charge determination. As with the regular public charge determination, the special rule is a prospective test, under which the INS is to determine whether, based on the applicant's employment history, he or she is likely to become a public charge. The regulations require that the applicant cooperate fully in verifying that he or she has not been the recipient of public cash assistance and has not had a criminal record.

Employment and travel abroad. Under the regulations, LIFE legalization applicants who file their adjustment applications (Form I-485) may also apply for employment authorization by submitting Form I-765 (Application for an Employment Authorization Document), together with the fee for that form (currently $100).

LIFE legalization applicants may also apply for advance parole by filing Form I-131 (Application for Travel Documents) in order to travel outside the U.S. and return. Applicants who are subject to a final order of removal, deportation, or exclusion must file and obtain approval of Form I-212 (Application for Permission to Reapply for Admission after Deportation or Removal) in addition to obtaining advance parole in order to leave the U.S. and subsequently return.

Family Unity. The LIFE Act establishes a Family Unity program for the spouses and minor children of immigrants who are eligible to legalize under the statute. This status allows beneficiaries to work in the U.S. and protects them from deportation or removal. The spouse or child must have entered the U.S. before Dec. 1, 1988, and resided in the U.S. on that date. The family relationship need not have existed on that date. However, under the interim rule, the family relationship must exist at the time that the application for Family Unity is adjudicated and thereafter. Thus, the INS may terminate Family Unity status for spouses who divorce and for children who marry or turn 21 years of age. The INS bases this interpretation of the statute on its use of the present tense in describing eligibility for Family Unity.

Individuals who have been convicted of a felony or of three or more misdemeanors are not eligible for LIFE Family Unity. Applicants also must not have been convicted of a particularly serious crime in the U.S. or committed a serious nonpolitical crime before coming to the U.S.

Spouses and children of individuals who are eligible for LIFE legalization may apply for Family Unity status before the relative has actually applied for legalization. However, Family Unity status may be denied (or terminated, if already granted) if the relative does not submit a LIFE legalization application by the May 31, 2002, deadline for such applications. The statute also allows individuals outside the U.S. who are spouses or children of individuals granted LIFE legalization and otherwise eligible for Family Unity to be paroled into the country to apply for the benefit. The INS will publish a separate regulation at some time in the future to establish a procedure for paroling Family Unity applicants.

To obtain LIFE Family Unity, applicants must submit Form I-817 (Application for Family Unity Benefits), which was recently revised to also constitute an application for an Employment Authorization Document (see related article in this issue). Applicants for LIFE Family Unity must mail the form and accompanying documents to the Missouri Service Center. Individuals who are granted LIFE Family Unity will be provided an EAD that is valid for one year. The INS will separately publish a regulation to explain how LIFE Family Unity beneficiaries can apply to extend their status.

Applicants for LIFE Family Unity who depart the U.S. will be deemed to have abandoned their applications. Individuals who are granted Family Unity may apply for advance parole to depart from and return to the U.S. by submitting form I-131.

66 Fed. Reg. 29,661-82 (June 1, 2001).