The New U.S. Immigration Law

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Saturday, July 14, 2001
Life Act: The New U.S. Immigration Law

LEGAL IMMIGRATION & FAMILY EQUITY ACT (LIFE ACT) OF 2000

The Omnibus Consolidated Appropriations Act of 2001, which Congress passed on Friday, contains several immigration-related provisions including the reinstatement of Section 245(i) until April 30, 2001. Measures included in Act include:

1. Section 245(i) grandfathered until April 30, 2001. Applicants must prove they were physically present in the U.S. on the date of enactment of LIFE.

2. New temporary "V" visa created for the spouses and minor children of legal permanent residents in the backlog for three years or more. Recipients of this visa would be protected from deportation, and granted work authorization.

3. New temporary "K" status created for spouses of U.S. citizens. This provision expands the use of the "K" visa to allow these spouses who married U.S. citizens abroad (and their minor children) and are awaiting approval of their green card applications to enter the U.S. Like current K visa holders, these "K" visa holders would be granted work authorization.

4. Opportunity to apply for adjustment for certain late legalization class members (CSS v. Meese, LULAC v. Reno, and INS v. Zambrano) who meet the new measure's qualifications.

5. Protection from deportation and work authorization granted to the spouses and minor children of late legalization applicants.

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 INS or DOL by April 30, 2001. 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 is signed by the President. (The physical presence requirement does not apply to 245(i) filings for individuals with pre-January 14, 1998 priority dates.) 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.

---------- Q&A ----------

1. What is the new Section 245(i) provision?

The Legal Immigration and Family Equity Act of 2000 (LIFE Act) extends Section 245(i) by replacing the old eligibility cutoff date (January 14, 1998, the "grandfather" date) with a new date of April 30, 2001. This means that eligible people have until April 30, 2001 to file an immigrant petition or labor certification application to be eligible to adjust their status in this country. IMPORTANT NOTE: The LIFE Act added a new "physical presence" requirement which means that people need to prove that they were actually in the U.S. on the date of enactment of this measure, December 21, in order to be eligible to use Section 245(i). Under the changes made by the LIFE Act, Section 245(i) will be available for any beneficiary of a bona fide immigrant visa petition (an I-130, I-140, or I-360) or application for labor certification that is filed on or before April 30, 2001. Beneficiaries of immigrant petitions or labor certifications that are filed after the old deadline of January 14, 1998, but before the new deadline of April 30, 2001, will be required to prove that they were physically present in the United States on December 21, 2000, the date that the new deadline became law. All qualified beneficiaries will be "grandfathered-in" under Section 245(i) even if they don't actually apply for adjustment of status (by submitting form I-485) until after the April 30, 2001 deadline, as long as a bona fide immigrant petition or labor certification application is filed before that date.

2. Who can benefit from the new Section 245(i) provisions?

A person who is eligible for permanent residence based on a family relationship or job offer, and who wishes to adjust status to permanent residence without leaving the U.S., could benefit from these provisions. 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. 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.) Thus, it is particularly important that persons who would be subject to the bars not leave the U.S. at all until the adjustment of status process is completed. Note that an immediate relative who was inspected upon entry can adjust status without use of Section 245(i).

3. What does the new physical presence requirement mean and how do you prove compliance with it?

Under the new law, beneficiaries of an immigrant petition or labor certification that is filed after the old deadline of January 14, 1998, but before the new deadline of April 30, 2001, will be required to prove that they were physically present in the United States on the date that LIFE Act is signed into law, December 21, 2000. A joint memorandum that Senators Kennedy (D-MA) and Abraham (R-MI) wrote clarifying some of the provisions of the new law emphasizes that the function of the physical presence requirement is to make sure that the renewed availability of Section 245(i) does not encourage anyone to illegally enter the United States in order to apply. The memorandum also states "It may be difficult for an individual physically present on the day of enactment to establish his or her presence on that precise date to qualify for 245(i). The Immigration and Naturalization Service (INS) should therefore be flexible in the types of evidence it will accept to establish physical presence on the day of enactment. For example, the kind of evidence of physical presence INS ordinarily accepts demonstrating that the applicant has been physically present during a reasonable period preceding that date, accompanied by an affidavit or declaration that the person was present on the date itself, should ordinarily suffice." AILA is working with the White House and the INS to develop clear standards and guidelines that will accomplish this goal.

4. How does a person file to take advantage of the new Section 245(i)?

Any person who will need Section 245(i) in order to adjust status must ensure that their qualifying I-130, I-140, I-360, or labor certification application reaches the applicable government agency on or before April 30, 2001. Those who choose, and are eligible, to file their visa petition and application for adjustment of status at the same time must submit the application for adjustment of status under Section 245(i) (Form I-485A) along with the petition and the applicable fees. Since the law simply replaces the old January 14, 1998 deadline with a new April 30, 2001 deadline, AILA is urging INS to adopt similar policies to those announced to meet the old deadline, namely that skeletal applications should be accepted. We will be working with the INS to try to achieve a fair, effective, and efficient implementation.

5. Why is April 30, 2001 an important date?

In order to use Section 245(i), applicants must prove that a bona fide immigrant visa petition or labor certification application was filed on their behalf on or before April 30, 2001. Therefore, any person who will need Section 245(i) in order to adjust status must file their I-130, I-140, I-360, or labor certification application on or before April 30, 2001. Any person whose petitions is filed after that date will not be eligible for Section 245(i), will be required to process an immigrant visa application at a U.S. Consulate abroad, and may be subject to the 3/10 year bars.

6. What is the fee and when do you need to pay it?

The Section 245(i) fee is still $1,000, and is in addition to any other filing fees levied by the INS. The $1,000 fee is paid at the time of filing the Form I-485A, which is submitted along with the standard application for adjustment of status (Form I-485). There are some circumstances in which the immigrant petition and the adjustment of status application can, at the applicant's option, be filed at the same time: immediate relatives of United States citizens may file the Form I-130 and I-485 concurrently, and INS has indicated that it plans to soon allow I-140 petitions and I-485s also to be filed concurrently. However, in most cases, the adjustment of status application is not filed until after the immigrant petition has been approved, and in many employment- based cases until after both the labor certification and immigrant petition have each been approved. Thus, in many cases, the fee will not have to be paid before the April 30, 2001 deadline.

7. Do the new Section 245(i) provisions give a person work authorization, protection from deportation, or travel permission?

NO! Section 245(i) only allows people who illegally entered the United States or are ineligible for adjustment of status under Section 245(c) to apply for adjustment of status in the United States if they are otherwise eligible for adjustment. It offers no other protections or rights.
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