Legalization, Immigration Reform and Control Act of 1986 (IRCA)
Legalization.
The legalization program came into existence with the passage of the Immigration Reform and Control Act of 1986 (IRCA). IRCA added two new sections to the Immigration and Nationality Act (sections 210 and 245A) dealing with legalization. Subsequent legislation (e.g., the Immigration Act of 1990, the Illegal Immigration Reform and Immigrant Responsibility Act of 1996, and the Legal Immigration Family Equity Act) have amended the benefits available under the legalization program, which has also been the subje ct of numerous lawsuits against INS.
(a) General . The Legalization provisions are contained in section 245A of the Act. This section of law provides a means for certain aliens who had maintained an unlawful residence in the United States since prior to January 1, 1982, and who were physically present in the U.S. from November 6, 1986 until the date of filing of the application, to become temporary residents. Then upon application and fulfillment of continuous residence and other conditions, they could file for permanent residence.
(b) Injunctions Against INS and Their Effect . Two injunctions have, in effect, extended the filing time for certain aliens. They were the LULAC vs INS and the CSS vs Meese (later renamed CSS vs Thornburg when consolidated at the appellate level) lawsuits. INS is required to accept applications from those seeking class membership under the criteria specified in these injunctions.
• LULAC vs INS : Persons who were illegally in the U.S. before January 1, 1982, but departed and reentered with a fraudulently obtained visa. A waiver under section 212(a)(6)(C) of the Act must be obtained by concurrent filing of the Form I-690, Application for Waiver of Grounds of Excludability.
• CSS vs Thornburg : Persons who were illegally in the U.S. prior to January 1, 1982, but who made a brief, casual and innocent trip outside the U.S. between May 1, 1987 and May 4, 1988.
The applicant must show that he/she had been misled or discouraged from filing an application before May 5, 1988. Subsequent court decisions have maintained that a simple statement from the alien is sufficient to prove that the alien departed and returned and was “front-desked” by INS.
Some applications filed under these two injunctions are supported by fraudulent affidavits and class membership could be denied on the basis that the affidavits cannot be verified. Some document vendors furnish complete cases for the aiens to file in order to gain employment authorization
(c) Applications for Temporary Residence .
(1) Filing of the Application . The proper application to file requesting classification as a temporary resident was the Form I-687. The complete application contained Form I-687, photographs, Form I-693 (Medical Examination), Form FD-258 (Fingerprint Cards (2)), proof of identity, and evidence of eligibility. The forms could be filed with a Qualified Designated Entity (QDE) (an organization approved by the Attorney General to accept and process legalization applications). Authority for QDEs to accept applications expired at the end of the prescribed application filing period). A 90 million series A-file was created for each applicant.
(2) Filing Period . The filing period for Legalization applications was from May 5, 1987 through May 4, 1988. One group of aliens, those classified as "Extended Voluntary Departure", could apply for temporary residence until December 22, 1989.
(3) Initial Review of the Application . The Form I-687 is an application for temporary residence for a legalization applicant. The evidence supplied with the application is first reviewed by an officer in the District Office. The alien must prove by a preponderance of the evidence that he or she is eligible for temporary residence. The evidence must be verifiable. Proof of identity must be furnished. And if assumed names have been used by the alien, then proof of common identity must be furnished. Proof of the qualifying illegal residence perio ds must be furnished.
(4) Initial Decision . An Immigration Adjudicator within the District Office will make a preliminary decision to grant or to deny the application. Form I-696 will be completed, to document the officer's recommendation, and placed in the A-file. If the initial decision is to grant the application, then the Employment Authorization Document, Form I-688A, is issued to the alien. At this time the Temporary Resident Alien Card, Form I-688, is created and placed in a filing cabinet in terminal digit order. If the initial decision is to deny the application on statutory grounds that do not allow for a waiver, no employment is authorized. The file is then transferred to the Service Center having jurisdiction over the area where the alien resides.
(5) Final Decision . When the application for temporary residence is granted, a letter is sent from the Service Center requesting that the alien report to a local office to receive the Form I-688, Temporary Resident Alien Card. The I-688 indicates that temporary residence is granted under section 245A of the Act.
(6) Effective Date . The date of adjustment to temporary resident status is the date of fee receipt.
(d) Termination of Temporary Residence . Temporary residence may be terminated for cause. Circumstances must exist that would make the alien ineligible for permanent residence (e.g., a felony conviction). The alien is sent a Notice of Intent to Terminate Temporary Resident Status , stating the reasons that would make the alien ineligible for permanent residence or temporary residence if that status was granted in error. The alien is granted 30 days to respond or rebut the allegations. If no satisfactory response is received, the temporary resident status is terminated by an order issued by a service center director.
(e) Application for Permanent Residence .
(1) General . The temporary resident under section 245A of the Act could file an application for permanent residence at any time after attaining temporary residence. However, the application would not be processed until the beginning of the nineteenth month after the alien received temporary residence (date the fee for the Form I-687 was receipted by INS). The application package should contain Form I-698, Application to Adjust Status from Temporary to Permanent Resident (Under Section 245A of Public Law 99-603) , Form I-693, medical examination form, and one color photograph. IMMACT 90 extended the time period for filing for permanent residence to a maximum of 42 months from the date the alien received temporary residence.
(2) Filing . The application is filed with the Service Center having jurisdiction over the place of residence of the alien.
(3) Eligibility Requirements .
(A) Residence . The applicant for permanent residence must show continuous residence from the time temporary residence was granted. The alien could be absent from the U.S. for an aggregate period of 90 days, but no more than 30 days in a single absence, unless he or she could show circumstances beyond their control or of an emergent nature.
(B) HIV/AIDS Test . The HIV test is required, but the statutory grounds for exclusion for positive HIV was removed by IMMACT 90 paragraph 602. A waiver is required.
(C) Knowledge of U.S. History and Government . Requirements of section 312 of the Act must be met by taking a standard USCIS test or by certificate of satisfactory completion in a study program approved by the Attorney General, or the alien must be pursuing a course of study approved by the Attorney General. Once the section 312 conditions are met, the alien is not required to take another examination for history and government for naturalization. The section 312 requirements may be waived for an applicant over the age of 65.
(4) Interview . If the application for permanent residence is complete and approved by the Service Center, then the applicant is sent an interview notice from the Service Center scheduling the alien for an interview at a district office. The interview consists of verifying identity, the completion of section 312 requirements, and the processing of the Form I-89 for the resident alien card.
(5) Admissibility . The exclusion grounds not applicable to legalization applicants were paragraphs (5) (requirement for labor certification) and (7)(A) (immigrant visa requirement) of section 212 of the Act. Applicants who were not admissible to the United States for other grounds could file Form I-690, Application for Waiver of Grounds of Excludability , for all grounds contained in section 212(a) of the Act, except for those offenses defined in paragraphs (2)(A) and (2)(B) (relating to criminals); paragraph (4) (relating to aliens likely to become public charges); paragraph (2)(C) (relating to drug offenses, except for a single offense of simple possession of marijuana, 30 grams or less); and paragraph (3) (security related grounds, except for subparagraph (3)). A felony conviction or conviction of three or more misdemeanors made the applicant ineligible for temporary residence and permanent reside nce.
(6) Denials . A final denial may be issued by the District Director in an admitted fraud case or where the applicant did not meet statutory requirements. The denial is issued on form I-292 stating the reasons for the denial, and informing the applicant of appeal rights. Should the District Director not wish to make the final decision, with a recommendation of denial, the case could be referred to the Service Center Director having jurisdiction over the residence of the applicant. The denials issued by a Service Center Director are issued on form I-692 setting forth the specific reasons for the denial and informing the applicant of appeal rights. When the denial is issued the applicant should be sent three copies of Form I-694, Notice of Appeal of Decision Under Section 210 or 245A of the Immigration and Nationality Act . If the decision of the District Director or the Service Center Director is appealed, the appeal must be filed with the Director who denied the application within 30 days of receipt of the written denial. After receipt of the fee, the appeal is forwarded to the Administrative Appeals Office. Untimely appeals are accepted as motions to reopen and either granted on the basis of additional evidence submitted or forwarded to the Administrative Appeals Office.
(f) Confidentiality . INS, USCIS, and DHS may not use or disclose information in a legalization application or its accompanying evidence except to adjudicate the application itself, or for certain law enforcement functions and fraud proceedings. If the legalization application is granted, however, and the alien later files an immigrant visa petition or other status petition under section 204 of the Act, INS and USCIS may use information in the legalization file in adjudicating the immigrant visa petition. This also applies to adjudicating a later naturalization application. Consult with district counsel when contemplating any use or disclosure of this information.
(g) Precedent Decisions .
• Matter of O- , 19 I & N Dec. 871 (Comm’r 1989) . The Legalization Appeals Unit will sua sponte reopen and reconsider section 245A of the Act cases where there appears to be manifest injustice in the original decision. A nonimmigrant exchange visitor is eligible for temporary resident status if he/she was not subject to section 212(e) of the Act or obtained a waiver of section 212(e).
• Matter of M- , 19 I & N Dec. 861 (Comm’r 1989) . A conviction exists pursuant to section 245A(a)(4)(B) of the Act where a judge or jury has found the alien guilty or a plea of guilty or nolo contendere, and the judge has ordered some form of punishment, including but not limited to a fine or probation.
• Matter of S- , 19 I & N Dec. 851 (Comm’r 1988) . An immigrant alien who entered the U.S. prior to 1/1/82 is eligible for temporary resident status if he/she can prove that they were residing in the U.S. in unlawful status since such date. An immigrant who entered the U.S. by means of fraud prior to 1/1/82 must file a waiver of grounds of excludability to be eligible for temporary residence.
• Matter of P- , 19 I & N Dec. 823 (Comm’r 1988) . The Application for Waiver of Excludability (Form I-690) should be adjudicated separately form the Application for Status as a Temporary Resident (Form I-687). A nonimmigrant alien whose unlawful status is known to the U.S. Government prior to 1/1/82 is eligible for temporary resident status under section 245A of the Act, if otherwise qualified.
• Matter of C- , 19 I & N Dec. 808 (Comm’r 1988) . An absence from the U. S. in excess of the 30 day limit does not interrupt continuous residence defined in 8 CFR 245A.1(c)(1)(i) if the absence was unexpected and emergent.
• Matter of N - , 19 I & N Dec. 760 (Comm’r 1988) . A student who acquired reinstatement by fraud, by not revealing unauthorized employment, did not obtain lawful status. Waiver of excludability is required prior to the grant of temporary residence.
• Matter of Medrano , 20 I&N Dec. 21 (BIA 1990) . The status of a lawful temporary resident under section 245A of the Act who commits a deportable offence must be terminated as a condition precedent to the commencement of deportation proceedings, except as provided by the “Medrano regulations” found at 8 CFR 245a.2(a)(2)(ii).
(a) The SAW Program . The Special Agricultural Worker (SAW) provisions are contained in section 210 of the Act. This section of law provided a means for certain agricultural workers to attain temporary residence then later automatic adjustment to permanent residence.
(1) Jurisdiction . Special offices were established within INS for the acceptance, review, and adjudication of applications under the Legalization and SAW programs. There were two types of offices established. The first office was the Legalization Office located within a district and under the supervision of the District Director. The second office, called the Regional Processing Facility (RPF), was located within a Service Center, and under the jurisdiction of the Regional Commissioner. It was within this regional facility where the final decision, in most cases, to grant or deny temporary resident status was made. In the latter part of 1991 most of the legalization offices were closed and the workload was transferred to the district offices. The Regional Processing Facilities were combined with the Service Centers and no longer functioned as separate entities. The Service Centers were placed under the direct supervision of the Office of Service Center Operations in INS Headquarters. The final authority for the granting of T emporary Residence under section 210 of the Act lies with the Service Center Director.
(2) Definitions of SAW groups .
• Group I : The applicant must have been employed in a qualifying agricultural occupation in the United States for 90 man-days in the aggregate (this means that the 90 days did not have to be consecutive and only one hour of work per day was required to equal a man-day) in each of the 12 month periods ending on May 1, 1984, 1985, and 1986. The applicant must also have resided in the United States for six months, in the aggregate, in each of those 12 month periods.
• Group II :The applicant must have been employed in the United States for 90 man-days in the aggregate, in qualifying agricultural employment, during the 12 month period ending May 1, 1986. There is no United States residence requirement for SAW Group II.
There was a numerical limit of 350,000 placed on SAW Group I admissions. However, there was no limitation placed on SAW Group II admissions, and any SAW Group I applicants in excess of the limitation of 350,000 were granted SAW Group II status.
(3) Filing of the Application . The proper application to file to request classification as either a Group I or Group II SAW was the Form I-700. The complete application contained Form I-700, Form I-693 (Medical Examination), Form FD-258 (Fingerprint Cards (2)), proof of identity, and evidence of eligibility. The forms could be filed with a Qualified Designated Entity (QDE) (an organization approved by the Attorney General to accept and process legalization applications. Authority for QDEs to accept applications expired at the end of th e prescribed application filing period.), a designated Port of Entry or an Overseas Processing Office. A 90 million series A-file was created for each applicant.
(4) Filing Period . The filing period for SAW applications was from June 1, 1987 through November 30, 1988.
(5) Initial Review of the Application . The Form I-700 was an application for temporary residence. The evidence supplied with the application was first reviewed by an officer in the District Office. The alien must prove by a preponderance of the evidence that he or she was eligible for temporary residence. The evidence must be verifiable. Proof of identity must be furnished. And if assumed names have been used by the alien, then proof of common identity must be furnished. Proof of the qualifying residence periods must be furnished by SAW Group I applicants only. Proof of qualifying periods of employment must be furnished by all applicants.
(6) Initial Decision . An Adjudicator within the District Office will make a preliminary decision to grant or to deny the application. Form I-696 will be completed, to document the officer's recommendation, and placed in the A-file. If the initial decision is to grant the application, an Employment Authorization Document, Form I-688A, is issued to the alien. At this time the Temporary Resident Alien Card, Form I-688, is created and placed in the "A" file. If the initial decision is to deny the application on statutory grounds t hat do not allow for a waiver, no employment is authorized. The file is then transferred to the Service Center having jurisdiction over the area where the alien resides.
(7) Final Decision . When the application for temporary residence was granted, a letter was sent from the RPF requesting the alien to report to a local office to receive the Form I-688, Temporary Resident Alien Card. The I-688 indicated that temporary residence was granted under section 210 of the Act.
(8) Permanent Residence . Permanent residence was granted to SAWs by statute. All SAWs Group I became legal permanent residents on December 1, 1989. All SAWs Group II became legal permanent residents on December 2, 1990. Both groups were required to file Form I-90A to receive their alien registration cards, Form I-551.
(9) Admissibility . The exclusion grounds that were not applicable to SAWs are paragraphs (5) (requirement for labor certification) and (7)(A) (immigrant visa requirement) of section 212 of the Act. Applicants who were not admissible to the United States for other grounds could file Form I-690, Application for Waiver of Grounds of Excludability , for all grounds contained in section 212(a) of the Act, except for those offenses defined in paragraphs (2)(A) and (2)(B) (relating to criminals); paragraph (4) (relating to aliens likely to become public charges); paragraph (2)(C) (relating to drug offenses, except for a single offense of simple possession of marijuana, 30 grams or less); and paragraph (3) (security related grounds, except for subparagraph (3)). A felony conviction or conviction of three or more misdemeanors made the applicant ineligible for temporary residence.
(10) Denials . A final denial may be issued by the District Director in an admitted fraud case or where the applicant did not meet statutory requirements. The denial is issued on Form I-292 stating the reasons for the denial and informing the applicant of appeal rights. Should the District Director not wish to make the final decision, with a recommendation of denial, the case could be referred to the Service Center Director having jurisdiction over the residence of the applicant. The denials issued by a Service Center D irector are issued on Form I-692 setting forth the specific reasons for the denial and informing the applicant of appeal rights. When the denial is issued the applicant should be sent three copies of Form I-694, Notice of Appeal of Decision Under Section 210 or 245A of the Immigration and Nationality Act . If the decision of the District Director or the Service Center Director is appealed, the appeal must be filed with the Director who denied the application within 30 days of receipt of the written denial. After receipt of the fee, the appeal is forwarded to the Administrative Appeals Office. Untimely appeals are accepted as motions to reopen and either granted on the basis of additional evidence submitted or forwarded to the Administrative Appeals Office.
(b) The Replacement Agricultural Worker Program . Section 210A of the Act, the Replenishment Agricultural Worker (RAW) program, was added by the 1986 IRCA. According to section 210A(a)(1)
The legalization program came into existence with the passage of the Immigration Reform and Control Act of 1986 (IRCA). IRCA added two new sections to the Immigration and Nationality Act (sections 210 and 245A) dealing with legalization. Subsequent legislation (e.g., the Immigration Act of 1990, the Illegal Immigration Reform and Immigrant Responsibility Act of 1996, and the Legal Immigration Family Equity Act) have amended the benefits available under the legalization program, which has also been the subje ct of numerous lawsuits against INS.
(a) General . The Legalization provisions are contained in section 245A of the Act. This section of law provides a means for certain aliens who had maintained an unlawful residence in the United States since prior to January 1, 1982, and who were physically present in the U.S. from November 6, 1986 until the date of filing of the application, to become temporary residents. Then upon application and fulfillment of continuous residence and other conditions, they could file for permanent residence.
(b) Injunctions Against INS and Their Effect . Two injunctions have, in effect, extended the filing time for certain aliens. They were the LULAC vs INS and the CSS vs Meese (later renamed CSS vs Thornburg when consolidated at the appellate level) lawsuits. INS is required to accept applications from those seeking class membership under the criteria specified in these injunctions.
• LULAC vs INS : Persons who were illegally in the U.S. before January 1, 1982, but departed and reentered with a fraudulently obtained visa. A waiver under section 212(a)(6)(C) of the Act must be obtained by concurrent filing of the Form I-690, Application for Waiver of Grounds of Excludability.
• CSS vs Thornburg : Persons who were illegally in the U.S. prior to January 1, 1982, but who made a brief, casual and innocent trip outside the U.S. between May 1, 1987 and May 4, 1988.
The applicant must show that he/she had been misled or discouraged from filing an application before May 5, 1988. Subsequent court decisions have maintained that a simple statement from the alien is sufficient to prove that the alien departed and returned and was “front-desked” by INS.
Some applications filed under these two injunctions are supported by fraudulent affidavits and class membership could be denied on the basis that the affidavits cannot be verified. Some document vendors furnish complete cases for the aiens to file in order to gain employment authorization
(c) Applications for Temporary Residence .
(1) Filing of the Application . The proper application to file requesting classification as a temporary resident was the Form I-687. The complete application contained Form I-687, photographs, Form I-693 (Medical Examination), Form FD-258 (Fingerprint Cards (2)), proof of identity, and evidence of eligibility. The forms could be filed with a Qualified Designated Entity (QDE) (an organization approved by the Attorney General to accept and process legalization applications). Authority for QDEs to accept applications expired at the end of the prescribed application filing period). A 90 million series A-file was created for each applicant.
(2) Filing Period . The filing period for Legalization applications was from May 5, 1987 through May 4, 1988. One group of aliens, those classified as "Extended Voluntary Departure", could apply for temporary residence until December 22, 1989.
(3) Initial Review of the Application . The Form I-687 is an application for temporary residence for a legalization applicant. The evidence supplied with the application is first reviewed by an officer in the District Office. The alien must prove by a preponderance of the evidence that he or she is eligible for temporary residence. The evidence must be verifiable. Proof of identity must be furnished. And if assumed names have been used by the alien, then proof of common identity must be furnished. Proof of the qualifying illegal residence perio ds must be furnished.
(4) Initial Decision . An Immigration Adjudicator within the District Office will make a preliminary decision to grant or to deny the application. Form I-696 will be completed, to document the officer's recommendation, and placed in the A-file. If the initial decision is to grant the application, then the Employment Authorization Document, Form I-688A, is issued to the alien. At this time the Temporary Resident Alien Card, Form I-688, is created and placed in a filing cabinet in terminal digit order. If the initial decision is to deny the application on statutory grounds that do not allow for a waiver, no employment is authorized. The file is then transferred to the Service Center having jurisdiction over the area where the alien resides.
(5) Final Decision . When the application for temporary residence is granted, a letter is sent from the Service Center requesting that the alien report to a local office to receive the Form I-688, Temporary Resident Alien Card. The I-688 indicates that temporary residence is granted under section 245A of the Act.
(6) Effective Date . The date of adjustment to temporary resident status is the date of fee receipt.
(d) Termination of Temporary Residence . Temporary residence may be terminated for cause. Circumstances must exist that would make the alien ineligible for permanent residence (e.g., a felony conviction). The alien is sent a Notice of Intent to Terminate Temporary Resident Status , stating the reasons that would make the alien ineligible for permanent residence or temporary residence if that status was granted in error. The alien is granted 30 days to respond or rebut the allegations. If no satisfactory response is received, the temporary resident status is terminated by an order issued by a service center director.
(e) Application for Permanent Residence .
(1) General . The temporary resident under section 245A of the Act could file an application for permanent residence at any time after attaining temporary residence. However, the application would not be processed until the beginning of the nineteenth month after the alien received temporary residence (date the fee for the Form I-687 was receipted by INS). The application package should contain Form I-698, Application to Adjust Status from Temporary to Permanent Resident (Under Section 245A of Public Law 99-603) , Form I-693, medical examination form, and one color photograph. IMMACT 90 extended the time period for filing for permanent residence to a maximum of 42 months from the date the alien received temporary residence.
(2) Filing . The application is filed with the Service Center having jurisdiction over the place of residence of the alien.
(3) Eligibility Requirements .
(A) Residence . The applicant for permanent residence must show continuous residence from the time temporary residence was granted. The alien could be absent from the U.S. for an aggregate period of 90 days, but no more than 30 days in a single absence, unless he or she could show circumstances beyond their control or of an emergent nature.
(B) HIV/AIDS Test . The HIV test is required, but the statutory grounds for exclusion for positive HIV was removed by IMMACT 90 paragraph 602. A waiver is required.
(C) Knowledge of U.S. History and Government . Requirements of section 312 of the Act must be met by taking a standard USCIS test or by certificate of satisfactory completion in a study program approved by the Attorney General, or the alien must be pursuing a course of study approved by the Attorney General. Once the section 312 conditions are met, the alien is not required to take another examination for history and government for naturalization. The section 312 requirements may be waived for an applicant over the age of 65.
(4) Interview . If the application for permanent residence is complete and approved by the Service Center, then the applicant is sent an interview notice from the Service Center scheduling the alien for an interview at a district office. The interview consists of verifying identity, the completion of section 312 requirements, and the processing of the Form I-89 for the resident alien card.
(5) Admissibility . The exclusion grounds not applicable to legalization applicants were paragraphs (5) (requirement for labor certification) and (7)(A) (immigrant visa requirement) of section 212 of the Act. Applicants who were not admissible to the United States for other grounds could file Form I-690, Application for Waiver of Grounds of Excludability , for all grounds contained in section 212(a) of the Act, except for those offenses defined in paragraphs (2)(A) and (2)(B) (relating to criminals); paragraph (4) (relating to aliens likely to become public charges); paragraph (2)(C) (relating to drug offenses, except for a single offense of simple possession of marijuana, 30 grams or less); and paragraph (3) (security related grounds, except for subparagraph (3)). A felony conviction or conviction of three or more misdemeanors made the applicant ineligible for temporary residence and permanent reside nce.
(6) Denials . A final denial may be issued by the District Director in an admitted fraud case or where the applicant did not meet statutory requirements. The denial is issued on form I-292 stating the reasons for the denial, and informing the applicant of appeal rights. Should the District Director not wish to make the final decision, with a recommendation of denial, the case could be referred to the Service Center Director having jurisdiction over the residence of the applicant. The denials issued by a Service Center Director are issued on form I-692 setting forth the specific reasons for the denial and informing the applicant of appeal rights. When the denial is issued the applicant should be sent three copies of Form I-694, Notice of Appeal of Decision Under Section 210 or 245A of the Immigration and Nationality Act . If the decision of the District Director or the Service Center Director is appealed, the appeal must be filed with the Director who denied the application within 30 days of receipt of the written denial. After receipt of the fee, the appeal is forwarded to the Administrative Appeals Office. Untimely appeals are accepted as motions to reopen and either granted on the basis of additional evidence submitted or forwarded to the Administrative Appeals Office.
(f) Confidentiality . INS, USCIS, and DHS may not use or disclose information in a legalization application or its accompanying evidence except to adjudicate the application itself, or for certain law enforcement functions and fraud proceedings. If the legalization application is granted, however, and the alien later files an immigrant visa petition or other status petition under section 204 of the Act, INS and USCIS may use information in the legalization file in adjudicating the immigrant visa petition. This also applies to adjudicating a later naturalization application. Consult with district counsel when contemplating any use or disclosure of this information.
(g) Precedent Decisions .
• Matter of O- , 19 I & N Dec. 871 (Comm’r 1989) . The Legalization Appeals Unit will sua sponte reopen and reconsider section 245A of the Act cases where there appears to be manifest injustice in the original decision. A nonimmigrant exchange visitor is eligible for temporary resident status if he/she was not subject to section 212(e) of the Act or obtained a waiver of section 212(e).
• Matter of M- , 19 I & N Dec. 861 (Comm’r 1989) . A conviction exists pursuant to section 245A(a)(4)(B) of the Act where a judge or jury has found the alien guilty or a plea of guilty or nolo contendere, and the judge has ordered some form of punishment, including but not limited to a fine or probation.
• Matter of S- , 19 I & N Dec. 851 (Comm’r 1988) . An immigrant alien who entered the U.S. prior to 1/1/82 is eligible for temporary resident status if he/she can prove that they were residing in the U.S. in unlawful status since such date. An immigrant who entered the U.S. by means of fraud prior to 1/1/82 must file a waiver of grounds of excludability to be eligible for temporary residence.
• Matter of P- , 19 I & N Dec. 823 (Comm’r 1988) . The Application for Waiver of Excludability (Form I-690) should be adjudicated separately form the Application for Status as a Temporary Resident (Form I-687). A nonimmigrant alien whose unlawful status is known to the U.S. Government prior to 1/1/82 is eligible for temporary resident status under section 245A of the Act, if otherwise qualified.
• Matter of C- , 19 I & N Dec. 808 (Comm’r 1988) . An absence from the U. S. in excess of the 30 day limit does not interrupt continuous residence defined in 8 CFR 245A.1(c)(1)(i) if the absence was unexpected and emergent.
• Matter of N - , 19 I & N Dec. 760 (Comm’r 1988) . A student who acquired reinstatement by fraud, by not revealing unauthorized employment, did not obtain lawful status. Waiver of excludability is required prior to the grant of temporary residence.
• Matter of Medrano , 20 I&N Dec. 21 (BIA 1990) . The status of a lawful temporary resident under section 245A of the Act who commits a deportable offence must be terminated as a condition precedent to the commencement of deportation proceedings, except as provided by the “Medrano regulations” found at 8 CFR 245a.2(a)(2)(ii).
(a) The SAW Program . The Special Agricultural Worker (SAW) provisions are contained in section 210 of the Act. This section of law provided a means for certain agricultural workers to attain temporary residence then later automatic adjustment to permanent residence.
(1) Jurisdiction . Special offices were established within INS for the acceptance, review, and adjudication of applications under the Legalization and SAW programs. There were two types of offices established. The first office was the Legalization Office located within a district and under the supervision of the District Director. The second office, called the Regional Processing Facility (RPF), was located within a Service Center, and under the jurisdiction of the Regional Commissioner. It was within this regional facility where the final decision, in most cases, to grant or deny temporary resident status was made. In the latter part of 1991 most of the legalization offices were closed and the workload was transferred to the district offices. The Regional Processing Facilities were combined with the Service Centers and no longer functioned as separate entities. The Service Centers were placed under the direct supervision of the Office of Service Center Operations in INS Headquarters. The final authority for the granting of T emporary Residence under section 210 of the Act lies with the Service Center Director.
(2) Definitions of SAW groups .
• Group I : The applicant must have been employed in a qualifying agricultural occupation in the United States for 90 man-days in the aggregate (this means that the 90 days did not have to be consecutive and only one hour of work per day was required to equal a man-day) in each of the 12 month periods ending on May 1, 1984, 1985, and 1986. The applicant must also have resided in the United States for six months, in the aggregate, in each of those 12 month periods.
• Group II :The applicant must have been employed in the United States for 90 man-days in the aggregate, in qualifying agricultural employment, during the 12 month period ending May 1, 1986. There is no United States residence requirement for SAW Group II.
There was a numerical limit of 350,000 placed on SAW Group I admissions. However, there was no limitation placed on SAW Group II admissions, and any SAW Group I applicants in excess of the limitation of 350,000 were granted SAW Group II status.
(3) Filing of the Application . The proper application to file to request classification as either a Group I or Group II SAW was the Form I-700. The complete application contained Form I-700, Form I-693 (Medical Examination), Form FD-258 (Fingerprint Cards (2)), proof of identity, and evidence of eligibility. The forms could be filed with a Qualified Designated Entity (QDE) (an organization approved by the Attorney General to accept and process legalization applications. Authority for QDEs to accept applications expired at the end of th e prescribed application filing period.), a designated Port of Entry or an Overseas Processing Office. A 90 million series A-file was created for each applicant.
(4) Filing Period . The filing period for SAW applications was from June 1, 1987 through November 30, 1988.
(5) Initial Review of the Application . The Form I-700 was an application for temporary residence. The evidence supplied with the application was first reviewed by an officer in the District Office. The alien must prove by a preponderance of the evidence that he or she was eligible for temporary residence. The evidence must be verifiable. Proof of identity must be furnished. And if assumed names have been used by the alien, then proof of common identity must be furnished. Proof of the qualifying residence periods must be furnished by SAW Group I applicants only. Proof of qualifying periods of employment must be furnished by all applicants.
(6) Initial Decision . An Adjudicator within the District Office will make a preliminary decision to grant or to deny the application. Form I-696 will be completed, to document the officer's recommendation, and placed in the A-file. If the initial decision is to grant the application, an Employment Authorization Document, Form I-688A, is issued to the alien. At this time the Temporary Resident Alien Card, Form I-688, is created and placed in the "A" file. If the initial decision is to deny the application on statutory grounds t hat do not allow for a waiver, no employment is authorized. The file is then transferred to the Service Center having jurisdiction over the area where the alien resides.
(7) Final Decision . When the application for temporary residence was granted, a letter was sent from the RPF requesting the alien to report to a local office to receive the Form I-688, Temporary Resident Alien Card. The I-688 indicated that temporary residence was granted under section 210 of the Act.
(8) Permanent Residence . Permanent residence was granted to SAWs by statute. All SAWs Group I became legal permanent residents on December 1, 1989. All SAWs Group II became legal permanent residents on December 2, 1990. Both groups were required to file Form I-90A to receive their alien registration cards, Form I-551.
(9) Admissibility . The exclusion grounds that were not applicable to SAWs are paragraphs (5) (requirement for labor certification) and (7)(A) (immigrant visa requirement) of section 212 of the Act. Applicants who were not admissible to the United States for other grounds could file Form I-690, Application for Waiver of Grounds of Excludability , for all grounds contained in section 212(a) of the Act, except for those offenses defined in paragraphs (2)(A) and (2)(B) (relating to criminals); paragraph (4) (relating to aliens likely to become public charges); paragraph (2)(C) (relating to drug offenses, except for a single offense of simple possession of marijuana, 30 grams or less); and paragraph (3) (security related grounds, except for subparagraph (3)). A felony conviction or conviction of three or more misdemeanors made the applicant ineligible for temporary residence.
(10) Denials . A final denial may be issued by the District Director in an admitted fraud case or where the applicant did not meet statutory requirements. The denial is issued on Form I-292 stating the reasons for the denial and informing the applicant of appeal rights. Should the District Director not wish to make the final decision, with a recommendation of denial, the case could be referred to the Service Center Director having jurisdiction over the residence of the applicant. The denials issued by a Service Center D irector are issued on Form I-692 setting forth the specific reasons for the denial and informing the applicant of appeal rights. When the denial is issued the applicant should be sent three copies of Form I-694, Notice of Appeal of Decision Under Section 210 or 245A of the Immigration and Nationality Act . If the decision of the District Director or the Service Center Director is appealed, the appeal must be filed with the Director who denied the application within 30 days of receipt of the written denial. After receipt of the fee, the appeal is forwarded to the Administrative Appeals Office. Untimely appeals are accepted as motions to reopen and either granted on the basis of additional evidence submitted or forwarded to the Administrative Appeals Office.
(b) The Replacement Agricultural Worker Program . Section 210A of the Act, the Replenishment Agricultural Worker (RAW) program, was added by the 1986 IRCA. According to section 210A(a)(1)