LSC Updates Appendix To Immigrant Eligibility Rules

IMMIGRANTS & PUBLIC BENEFITS

Legal Services

LSC updates appendix to immigrant eligibility rules
Immigrants' Rights Update, Vol. 17, No. 6, October 21, 2003

The Legal Services Corporation (LSC) has issued a revised appendix to its rule 1626, the regulation governing immigrant eligibility for legal services. Prepared by the National Immigration Law Center for the LSC, the appendix lists typical documents that non-U.S. citizens may use to show that they have an LSC-eligible immigration status. The appendix had not been updated since 1997, and the new revision lists a number of new documents. The new appendix took effect on Sept. 26, 2003.

By statute, programs that receive funding from the LSC may represent only U.S. citizens, U.S. nationals, and certain specified categories of noncitizens. Categories of noncitizens whom LSC programs may represent include the following:

Lawful permanent residents (LPRs)
Refugees
Asylees
Persons granted withholding of deportation
Conditional entrants
Trafficking victims
Lawful temporary residents under the SAW program of the Immigration Reform and Control Act of 1986
Temporary agricultural workers (H-2A workers), but only with respect to issues concerning their employment
Individuals who have applied for adjustment to LPR status and whose application has not been rejected, who have a citizen spouse, parent, or child

The rules also allow LSC programs to represent the following additional groups:

Indigent foreign nationals who seek assistance under the Hague Convention on the Civil Aspects of International Child Abduction
Native American members of the Texas Band of Kickapoo

In addition, programs operating in the Northern Mariana Islands, Republic of Palau, Micronesia, and the Marshall Islands may serve clients without regard to their immigration status.

LSC recipients also may use non-LSC funds to represent certain victims of domestic violence, regardless of their immigration status, as long as the representation is related to preventing, or obtaining relief from, the abuse.

Changes in the Adjustment of Status Category of Eligibility. The eligibility category for persons who have applied to adjust to lawful permanent resident status and who have the required U.S. citizen relative is not limited to persons who applied for adjustment using the I?485 form. Rather, this category includes anyone who has filed an application that leads to acquiring lawful permanent resident status. The new appendix corrects the prior version by including as "adjustment applications" applications for two additional statuses that lead to LPR status. The first of these is for persons applying for Family Unity. This status was granted to spouses and children of individuals who were granted lawful permanent residence through the legalization provisions of the Immigration Reform and control Act of 1986. In addition, the Legal Immigration Family Equity (LIFE) Act of 2000 provided a Family Unity status for spouses and children of individuals eligible for legalization. As these individuals are pursuing permanent resident status, they would be eligible for legal services if they have a qualifying relative.

Another category of individuals eligible under the adjustment of status provisions is comprised of asylum applicants. Asylum is an immigration remedy that leads to permanent resident status and therefore should have been included in the previous appendix.

Since the the original appendix was issued, Congress created a number of new statuses that lead to LPR status, and new forms have been issued that constitute evidence of eligibility under this category. The new appendix includes the following forms that were not in the original appendix:

I-817 (Family Unity)
I-881 (cancellation of removal under the Nicaraguan Adjustment and Central American Relief Act, or NACARA)
OF-230 (application for a visa at a consulate)
I-129F (fiancé(e) petition)
I-539 for V-status (for spouses and children of LPRs who have petitioned to immigrate)
I-589 (asylum application)
I-730 (refugee/asylee relative petition)

In addition, the appendix lists as evidence of eligibility the employment authorization document coded for several new categories of immigrants applying for permanent residence. These codes include:

(c)(8) (asylum applicants)
(c)(21) (for S visa applicants-i.e., for informants assisting criminal investigations)
(a)(9) (for K-visa applicants-formerly for financé(e)s of U.S. citizens, but now for spouses and children as well)

A final change in the category of persons eligible for LSC-funded assistance in adjusting their status is the deletion of the requirement (erroneously included in the original appendix) that, to be eligible, noncitizen parents of U.S. citizens must show that their citizen children are under 21 years of age. As the statute contains no such requirement, the revised appendix removes the age provision in order to conform to the statute. However, to be eligible for LSC assistance in adjusting status, noncitizen children of U.S. citizens must be unmarried and under 21 years of age.

Withholding of Removal Additions. The appendix also adds two categories in the section on withholding of deportation: withholding of removal and deferral of removal. This is a technical change made necessary by the enactment of the Illegal Immigration Reform and Immigrant Responsibility Act of 1996 (IIRIRA) and the United States's ratification and implementation of the United Nations Convention Against Torture and Other Forms of Cruel, Inhuman or Degrading Treatment or Punishment.

68 Fed. Reg. 55539 (Sept. 26, 2003).