Revival of 245(i) and Two New Visas: Legal Immigration and Family Equity Act

Adjustment of status refers to the procedure for becoming a lawful
permanent resident without having to leave the United States. An alien
who was inspected and admitted or paroled into the United States may be
adjusted by the Attorney General, in his discretion and under such
regulations as he may prescribe, to that of an alien lawfully admitted
for permanent residence if:

1. the alien makes an application for such adjustment,

2. the alien is eligible to receive an immigrant visa and is admissible
to the United States for permanent residence,

3. and an immigrant visa is immediately available to him at the time his
application is filed.

8 CFR 245.1: The following categories of aliens are ineligible to apply for
adjustment of status to that of a lawful permanent resident alien under
section 245 of the Act, unless the alien establishes eligibility under
the provisions of section 245(i) of the Act and § 245.10, is not
included in the categories of aliens prohibited from applying for
adjustment of status listed in § 245.1(c), is eligible to receive an
immigrant visa, and has an immigrant visa immediately available at the
time of filing the application for adjustment of status:

  1. Foreign National Crewmen
    Those who, at the time of arrival, were serving in any capacity on board
    a vessel or aircraft or were destined to join a vessel or aircraft in
    the United States to serve in such a capacity are barred from adjustment
    of status.
  2. Transits Without Visas ("TWOV")
    Aliens who are in immediate and continuous transit through the United
    States to a foreign destination, in accordance with the terms of an
    agreement entered into between the transportation line and the INS, are
    not eligible for adjustment of status.
  3. Aliens Who Entered Under Visa Waivers
    An alien (other than an immediate relative) who was admitted as a
    nonimmigrant visitor without a visa under section 212(l) [visa waiver
    for B-1/B-2 admission to Guam] or section 217 [visa waiver pilot
    program] is barred from adjustment of status.
  4. Unauthorized Employment, Unlawful Status or Failure to Maintain Status
    Aliens who have engaged in unauthorized employment, who are not in
    lawful status at the time of filing of the adjustment application or who
    have failed to continuously maintain status since their entry into the
    United States are barred from adjustment of status. However, this
    statutory bar does not apply to immediate relatives of United States
    citizens or certain special immigrants.

Without Section 245(i), most persons who entered the U.S. without
inspection, overstayed an admission, acted in violation of the terms of
their status, worked without authorization, entered as a crewman, or
were admitted in transit without a visa would not have been eligible to
adjust status in the U.S. If an individual is eligible for permanent
residence, but not eligible for adjustment of status, that person might
still obtain permanent residence by leaving the U.S. and completing the
process for an immigrant visa at a U.S. consulate abroad. However, if
that individual had been unlawfully present in the U.S. for more than
180 days, he or she would be barred from reentering the U.S. for at
least 3 years, and perhaps as long as 10 years if unlawful presence is
more than one year. Under Section 245(i), an eligible individual can
remain in the U.S. to obtain permanent residence through adjustment of
status, and thus never trigger these entry bars. (Once permanent
residence is obtained, these entry bars no longer apply.)

Under the new Act, Section 245(i) of the Immigration and Nationality Act
becomes temporarily available to illegal immigrants present in the
United States on the date of the enactment, December 21, 2000. Under the
provision, a person who--if it weren't for their illegal status--would
qualify to immigrate (such as the spouse of a US citizen), may adjust
status after payment of a $1000 fine is made, and providing the
petition is “properly filed” prior to April 30, 2001. For many people with
status violations, leaving the US means they are subject to a three to
ten year reentry bar.

In order to take advantage of the 245(i) grandfathering, individuals
must have an immigrant visa petition or a labor certification
application on file with the Immigration Service or Department of Labor
by April 30, 2001. The "grandfather"clause of Section 245(i) is extended
from January 14, 1998 until April 30, 2001. As a result, any beneficiary
of an immigrant visa petition or labor certification application filed
BEFORE April 30, 2001, (including a spouse or child of the alien
beneficiary if eligible to receive a visa under section 203(d) of the
Act
) will be able to apply for adjustment of status under Section 245(i)
if necessary. If the qualifying visa petition or application for labor
certification was filed AFTER January 14, 1998, the alien must have been
physically present in the United States on December 21, 2000. This
requirement does NOT apply with respect to a spouse or child
accompanying or following to join a principal alien.

This means that you must have either an employer or a relative submit an
application for labor certification or a visa petition on your behalf by
April 30, 2001. In other words, you need a US citizen parent, spouse,
adult child, or adult brother or sister; or a lawful permanent resident
spouse or parent (if you are single); or a US employer that desires your
services; to file a petition on your behalf before 4/30/01. It is not
necessary that the Labor Department or the INS approve your application
or petition by that date, only that it be filed. Also, even if the
petition or application is never approved, ultimately denied, or
withdrawn, as long as it was "approvable when filed" you are entitled to
the benefits of Sec. 245(i). However, applications or petitions that are
deficient because they were submitted without the proper fee, or because
they were fraudulent, or without any basis in law or fact, are not
considered to be "approvable when filed" and confer no benefits under
Sec. 245(i).

GRANDFATHERED DERIVATIVE FAMILY MEMBERS

Spouses and children of the principal applicant are considered
"derivative beneficiaries" and they would also be grandfathered in under
245 (i) as long as the qualifying relationship with the principal
immigrant existed prior to April 21, 2001. This applies even for
children who lose derivative status by marrying, by turning 21, by the
petitioner’s naturalization, through the parents’ divorce, or even if
the principal or petitioner dies. Grandfathered eligibility attaches to
the person and not the petition.

Many aliens with pending, grandfathered petitions or labor certification
applications will marry or have children after the qualifying petition
or application was filed but before adjustment of status. These
"after-acquired" children and spouses are allowed to adjust under 245(i)
as long as they acquire the status of a spouse or child before the
principal alien ultimately adjusts status. An alien who becomes the
child or spouse of a grandfathered alien after the alien adjusts status
or immigrates cannot adjust status under section 245(i) unless he or she
has an independent basis for grandfathering.

Another good feature is that there is no requirement that the person
adjust status in the same preference category that they were petitioned
for. In addition, once you qualify for benefits under Sec. 245(i), your
eligibility never expires.

Individuals wishing to file under the new grandfather date also must
show that they are physically present in the United States on the day
the bill was signed by the President, 12/21/2000. (The physical presence
requirement does not apply to 245(i) filings for individuals with
pre-January 14, 1998 priority dates.) There is no requirement that you
be in the U.S. lawfully, only that you be physically present in the US
when the law is signed. This requirement does NOT apply with respect to
a spouse or child accompanying or following to join a principal alien.

(b) Eligibility: An alien who is included in the categories of
restricted aliens under 245.1(b) and meets the definition of a
``grandfathered alien'' may apply for adjustment of status under section
245 of the Act if the alien meets the requirements of paragraphs (b)(1)
through (b)(7) of this section:

(1) Is physically present in the United States;
(2) Is eligible for immigrant classification and has an immigrant visa
number immediately available at the time of filing for adjustment of
status;
(3) Is not inadmissible from the United States under any provision of
section 212 of the Act, or all grounds for inadmissibility have been
waived;
(4) Properly files Form I-485, Application to Register Permanent
Residence or Adjust Status on or after October 1, 1994, with the
required fee for that application;
(5) Properly files Supplement A to Form I-485 on or after October 1,
1994;
(6) Pays an additional sum of $1,000, unless payment of the additional
sum is not required under section 245(i) of the Act; and
(7) Will adjust status under section 245 of the Act to that of lawful
permanent resident of the United States on or after October 1, 1994.

The Omnibus Consolidated Appropriations Act of 2001, which Congress passed on December 15, contains several immigration-related provisions including the reinstatement of Section 245(i) until April 30, 2001. The President signed the Bill on December 21, 2000. Entitled the Legal Immigration and Family Equity Act ("LIFE"), this legislative package represents a compromise by Republicans who rejected the Democratic proposal known as the Latino Immigration Fairness Act ("LIFA").

Prior to the 1996 law, certain illegal immigrants were permitted to legalize their status with the payment of a fine. The 1996 law changed all that, generally requiring illegals to return home under all circumstances except asylum.

Under the new Act, Section 245(i) of the Immigration and Nationality Act becomes temporarily available to illegal immigrants present in the United States at the time the Bill is signed by Clinton. Under the provision, a person who--if it weren't for their illegal status--would qualify to immigrate (such as the spouse of a US citizen), may adjust status after payment of a $1000 fine is made, and providing the application is submitted prior to April 30, 2001. For many people with status violations, leaving the US means they are subject to a three to ten year reentry bar. Now, you need a US citizen parent, spouse, adult child, or adult brother or sister; or a lawful permanent resident spouse or parent (if you are single); or a US employer that desires your services; to file a petition on your behalf before 4/30/01.

In order to take advantage of the 245(i) grand fathering, individuals must have an immigrant visa petition or a labor certification application on file with the Immigration Service or Department of Labor by April 30, 2001. The "grandfather"clause of Section 245(i) is extended from January 14, 1998 until April 30, 2001. As a result, any beneficiary of an immigrant visa petition or labor certification application filed before April 30, 2001 will be able to apply for adjustment of status under Section 245(i) if necessary. However, for any applications filed after January 14, 1998 (but before April 30, 2001) the applicant must prove they were physically present in the United States on the date of the enactment of the LIFE Act in order to be eligible for Section 245(i) adjustment of status.

This means that you must have either an employer or a relative submit an application for labor certification or a visa petition on your behalf by April 30, 2001. In other words, you need a US citizen parent, spouse, adult child, or adult brother or sister; or a lawful permanent resident spouse or parent (if you are single); or a US employer that desires your services; to file a petition on your behalf before 4/30/01. It is not necessary that the Labor Department or the INS approve your application or petition by that date, only that it be filed. Also, even if the petition or application is never approved, ultimately denied, or withdrawn, as long as it was "approvable when filed" you are entitled to the benefits of Sec. 245(i). However, applications or petitions that are deficient because they were submitted without the proper fee, or because they were fraudulent, or without any basis in law or fact, are not considered to be "approvable when filed" and confer no benefits under Sec. 245(i).

The New"V" Visa: NEW TEMPORARY VISA FOR SPOUSES AND MINOR CHILDREN OF LEGAL PERMANENT RESIDENTS AWAITING AN IMMIGRANT VISA : The LIFE Act creates a new temporary visa, a "V' visa, that would allow the spouses and minor children of lawful permanent residents ("green card" holders) who are waiting their turn in the visa quota backlog line to enter the United States and be granted work authorization. They would be able to apply for the visa without leaving the US, and they would be eligible for the visas even if they entered the US without authorization or overstayed a visa. Formerly, spouses and minor children of legal permanent residents have had to wait four or five years out of the country and unable to visit their spouse or parent while waiting for green card priority dates to become current. (Currently they are prevented from getting a visitor visa because they are intending immigrants).

Allows the spouses and minor children of lawful permanent residents (the Family 2A category only) who have been waiting more than 3 years for a green card, to enter the United States and be granted work authorization. To qualify the spouse or child must meet the following criteria:

(1) A green card petition was filed on or before enactment of the law. The sponsoring permanent resident must already have filed a green card petition for the spouse or minor child with the INS on the date that the LIFE Act becomes law.

(2) Must have been waiting at least 3 years. The petition must either have been pending with the INS for three years or more or, if the petition has been approved, the spouse or minor child must have been waiting at least three years for their 'turn" in the green card line.

(3) Waiver of Grounds of Inadmissibility and Adjustment of Status. The law provides that periods in the United States in unauthorized status will not prevent someone from getting a V visa (Sec. 212(a)(9)(B) shall not apply) The law also would allow individuals already in the United States to apply to "adjust status" to the new V category, even if they are in the United States unlawfully (Sec. 212(a)(6)(A), (7), and (9)(B) shall not apply). With the reinstatement of Section 245(i), V visa holders will be eligible to adjust their status to legal permanent resident under that section.

These individuals may later apply to adjust status to permanent residence based on their sponsor's petition by paying a $1000 fee, as long as they were physically present in the United States between July 1 and October 1, 2000.

The "V" visa also would protect people from deportation, grant work authorization, and would allow adjustment for certain spouses and minor children who reside in this country and who are out of status. These benefits, directed to people who are out of status, are granted only to certain spouses and minor children of legal permanent residents; others are not granted these benefits, which go beyond that offered by a restored Section 245(i). Because Section 245(i) grants eligible people only the potential to adjust when they become eligible, but grants no legal status until then, the restoration of this much-needed provision would grant more people a lesser benefit. Further, it appears that the "V" visa is available only to those certain spouses and minor children who are in this country from July 1, 2000 to October 1, 2000.

Spousal reunification provision/expanded K Visa: This new visa, a variation on existing "K" status, would cover spouses of US citizens and their children who are living abroad. By expanding the eligibility for a K visa, the new law will allow the spouse of a U.S. citizen to enter the United States and obtain work authorization while waiting for the petition to be approved. The current K visa allows fiancees of US citizens to come to the US for marriage, and to work while awaiting the marriage. Spouses usually have to wait for up to a year to join their American wife or husband, and permission to visit meanwhile is rare. Spouses approved for the new K visa would be granted temporary work authorization. The bill provides that this new K status is available both to individuals with currently pending green card petitions and future applicants.

Any minor children who are accompanying the spouse can be included in the petition. In order to qualify the spouse and minor children must meet the following criteria:

(1) An immigrant visa petition must be previously filed. The law requires that the U.S. citizen file an immigrant petition before a visa can be issued to the spouse abroad. The K visa will allow the spouse abroad to enter the U.S. and await the approval of the petition.

(2) Recipient of the K visa must be outside of the United States. The law only authorizes the visa to be issued by a consular officer outside of the United States. There is no provision to "adjust status" for someone already in the United States in an unlawful status.

(3) The K visa petition must be filed in the United States by the U.S. citizen spouse.

(4) Must have a valid non-immigrant visa at the time that the K visa is issued. Where the marriage to the U.S. citizen occurred outside of the United States, the K visa recipient must have a valid non-immigrant visa issued by the consulate where the marriage occurred.

ADJUSTMENT OF STATUS OF CERTAIN LATE LEGALIZATION CLASS MEMBERS

To qualify a person must prove that he or she:

(1) Filed a written claim, before October 1, 2000, for class membership in CSS v. Meese, LULAC v. Reno, or INS v. Zambrano (three of the various class action lawsuits filed against the INS for their improper handling of the 1986 amnesty program).

(2) Entered the United States before January 1, 1982 and resided continuously in the United States in an unlawful status through May 4, 1988.

(3) Was continuously physically present in the United Sates beginning on November 6, 1986 and ending on May 4, 1988 (brief, casual and innocent absences will not interrupt a finding of continuous physical presence).

(4) Files an application for adjustment of status with the Attorney General within one year of the date on which the Attorney General issues final regulations to implement the new law. The Attorney General is required to issue those regulations within 120 days after enactment.

(4) Has not been convicted of any felony or three or more misdemeanors, has not assisted in the persecution of any person (on account of race, religion, nationality, political opinion or membership in a particular social group), and is registered or registering under the Military Selective Service Act (if required to do so under that Act).

(4) Is not inadmissible to the United States as an immigrant. The Attorney General may (for humanitarian purposes, to assure family unity, or when it is in the public interest) waive any of the grounds of inadmissibility except those relating to criminals, drug offenses, security grounds, and public charge grounds. In addition, the Attorney General may grant a waiver of the grounds of inadmissibility related to aliens seeking admission after previous removal and aliens present after previous immigration violations.

(4) Is able to pass the naturalization exam (relating to an understanding of basic civics and the ability speak, read, and write ordinary English), or show that they are satisfactorily pursuing a course of study (recognized by the Attorney General) to achieve such an understanding of English and civics.

Relief Granted Under the Law:

Eligible applicants will apply directly for permanent residence, rather than for temporary resident status.

* The Attorney General is required to establish a process under which an alien who has become eligible to apply for adjustment of status as a result of the enactment of this law and who is not physically present in the United States may apply for such adjustment from outside of the country.

* Applicants who submit a prima facie application under this law are entitled to a stay of deportation, work authorization, and permission to travel while their application is pending.

* The limitation on judicial review under IIRAIRA (Section 377) will not apply to applicants under these modifications and they will be entitled to the same review allowed by the 1986 laws.

* Newly legalized persons will not be disqualified from receiving certain public welfare assistance. (Under the original Section 245A applicants were disqualified from certain assistance for 5 years after their application was filed). However, they may still be subject to restrictions bases on the 1996 Welfare Reform Law.

* The confidentiality provisions of Section 245A (that generally prevent the information submitted on the application from being used for any purposes except criminal prosecution) will apply, except that information submitted by an applicant under the new law may be used in proceedings to rescind an adjustment of status.

GRANTS PROTECTION FROM DEPORTATION AND WORK AUTHORIZATION TO THE SPOUSES AND CHILDREN OF LATE LEGALIZATION APPLICANTS

Consistent with laws passed in 1990 to protect the family of legalization applicants who were already in the United States, the LIFE Act prevents the deportation of the spouses and minor children of a person who is applying for late legalization under the new law. Also consistent with prior laws, these family members are eligible for work authorization.

To be eligible for benefits a person must prove that he or she is:

* The spouse or unmarried child of a person who is eligible for adjustment of status as a result of the late legalization provisions of the LIFE Act.

* Entered the United States before December 1, 1998 and resided in the United States on that date.

* Has not been convicted of a felony or three or more misdemeanors in the United States, has not assisted in the persecution of any person (on account of race, religion, nationality, political opinion or membership in a particular social group), or is otherwise not a danger to the community of the United States. Relief Granted Under the Law.

* Eligible people will be protected from deportation for violations of status in the United States but will continue to be deportable for other grounds of deportation, including criminal activity.

* Eligible people will be entitled to work authorization in the United States.

* If the applicant for benefits under the late legalization provisions of the LIFE Act is applying from outside of the United States, the Attorney General is required to establish a process by which eligible spouses and children may be paroled into the United States in order to obtain the benefits under the new law.

PROVIDES CERTAIN WAIVERS AND PROTECTIONS AGAINST DEPORTATION FOR APPLICANTS UNDER NACARA AND HRIFA

Waiver of certain grounds of inadmissibility: In applications for adjustment of status under NACARA and HRIFA, the Attorney General may waive certain grounds of inadmissibility relating to re-entry after a previous order of deportation or removal (Sec. 212(a)(9)(A) and (C)O.


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