AG Issues Final Rule for Adjustment under LIFE Act Legalization, Extends Filing Deadline to June 4, 2003

IMMIGRATION LAW & POLICY

Obtaining Lawful Permanent Residence Status

AG ISSUES FINAL RULE FOR ADJUSTMENT UNDER LIFE ACT LEGALIZATION, EXTENDS FILING DEADLINE TO JUNE 4, 2003
Immigrants' Rights Update, Web Edition, July 15, 2002

The attorney general has issued a final rule governing adjustment of status under the "late legalization" provisions of the Legal Immigration Family Equity (LIFE) Act and the LIFE Act Amendments, and applications for Family Unity status under the LIFE Act. With some amendments, the final rule adopts the provisions of the June 1, 2001 interim rule (for a summary of the interim rule, see "Attorney General Issues Interim Rule Governing Applications for 'Late Legalization' Under the LIFE Act," Immigrants' Rights Update, June 29, 2001, p. 1).Most importantly, the final rule extends the filing deadline for applicants for adjustment under the LIFE Act to June 4, 2003.

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 Immigration and Naturalization Service's 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 nonetheless 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.

The interim rule took effect on June 1, 2001, and established a filing deadline of May 31, 2002, for adjustment applications. Because the final rule makes a number of changes to the application and adjudication process and was not issued until after the close of the original filing period, the final rule extends the application deadline until June 4, 2003.

The final rule reduces the fee for the Form I-485 adjustment application for LIFE Act applicants from $330 to $255, which is the fee charged to other adjustment applicants. The INS based the $330 fee of the interim rule on a draft fee review study that the agency subsequently re-evaluated, resulting in the fee for other adjustment applicants being set at $255 (see "INS Issues Final Rule Raising Fees for Many Applications and Petitions," Immigrants' Rights Update, Feb. 28, 2002, p. 7). The INS will send $75 refunds to individuals who paid the $330 fee. The supplementary information to the final rule states that the INS anticipates that all refunds will be delivered by Sept. 3, 2002, and individuals who have not received a refund by that date should contact Lorraine Juiffre at 802-872-6200, ext. 3035. The final rule also requires that applicants between the ages of 14 and 79, inclusive, pay the fingerprinting fee (which is now $50) at the time that they apply. The interim rule had required this of individuals between the ages of 14 and 75, and the final rule brings this requirement into conformity with that for all other adjustment applicants.

The statute requires that applicants for LIFE legalization have filed a "written claim for class membership" in one of the three lawsuits listed above, and the interim rule lists various forms of evidence class members can use to show that they did this. 8 CFR § 245a.14. The final rule adds a definition of a "written claim for class membership" as one of the forms listed in 8 CFR section 245a.14. The final rule also adds two additional forms to section 245a.14: Form I-765, Application for Employment Authorization, and an application for a stay of removal. The rule also clarifies that where an individual filed a written claim for class membership, he or she is deemed to have also filed a claim for class membership on behalf of a spouse or child "as of the date the alien alleges that he or she attempted to file or was discouraged from filing an application for legalization during the original application period." This provision allows the spouse or child to file a separate LIFE Act legalization application.

Commentators noted a conflict between the interim rule and Form I-485 Supplement D, LIFE Legalization Supplement to Form I-485 Instructions, regarding submission of proof of citizenship skills. Whereas the interim rule required that proof that an applicant is satisfactorily pursuing a course of study to achieve basic citizenship skills be submitted with the application, the instructions allow such proof to be submitted at any time during the application process. The final rule adjusts the regulation to accord with the form's instructions. The final rule also clarifies that applicants qualify for the age exception to this requirement only if they are 65 years of age or older at the time that they file the application for adjustment.

The interim rule required that applicants who needed to travel outside the U.S. apply for advance parole from the Missouri Service Center, and that such applications be adjudicated "pursuant to the standards prescribed in [INA section 212(d)(5)]." The final rule eliminates the reference to the standards of section 212(d)(5) because these are too restrictive. In addition, the final rule allows individuals to apply for advance parole at their local INS district office, if they submit evidence showing that their need to travel is due to urgent humanitarian reasons. LIFE legalization applicants who seek advance parole for other reasons must apply by mail to the Missouri Service Center.

The final rule modifies 8 CFR section 245a.18(d) to apply the "special rule" for determinations of whether the applicant is likely to become a public charge to all LIFE legalization cases. The special rule provides that an individual who has a consistent employment history is not inadmissible on the public charge ground even though he or she has income below the poverty level. The interim rule applied the special rule only where an applicant appeared inadmissible under the public charge ground of inadmissibility. The final rule also modifies the special rule to take into account the fact that an applicant "may not have consistent employment history due to the fact that an eligible alien was in an unlawful status and was not authorized to work."

The final rule also provides that, where the INS decides to deny a LIFE legalization application, the agency will send the applicant a notice of intent to deny and provide the individual a 30-day period in which to respond to the notice.

The final rule also provides that where the INS finds that an applicant has failed to establish eligibility to adjust under the LIFE Act, the INS will determine whether the individual has established eligibility for temporary residence under section 245A of the INA (the original legalization provision of the 1986 Immigration Control and Reform Act). This provision is intended to effectuate the congressional purpose in enacting the LIFE Act of bringing to an end the class action litigation challenging INS implementation of the IRCA legalization program. The INS notes that eligibility requirements for LIFE Act legalization are somewhat different than for section 245A temporary residence, and some applicants may qualify for legalization even though they do not qualify for LIFE Act legalization.

The final rule also addresses the LIFE Act Amendments Family Unity program. The supplementary information to the rule notes that the INS is currently drafting a separate rule that will implement section 1504(c) of the LIFE Act Amendments, which allows individuals to apply for Family Unity from outside the U.S.

Commentators urged the INS to grant Family Unity status in two-year increments rather than the one-year increments provided in the interim rule. The INS considers that granting employment authorization for a two-year period is inappropriate where the principal alien (the applicant for LIFE Act legalization) can obtain authorization only for one year. However, the final rule does provide that once the principal alien obtains lawful permanent resident status, Family Unity applicants can obtain Family Unity status in two-year increments.

The final rule took effect on June 4, 2002.

67 Fed. Reg. 38,341 (Jun. 4, 2002).