INS General Counsel Issues "List of Resolved Issues" to AILA
Posted Jan 29, 2000

As some of you may be aware based on earlier issues of the Immigration Law Bulletin of the Law Office of Sheela Murthy, there have been some very successful liaison meetings between the INS General Counsel and attorneys representing the American Immigration Lawyers Association (AILA). Based on the liaison meetings, INS General Counsel Bo Cooper wrote a letter on December 10,1999, confirming the common understanding as to certain legal issues. Many of these issues had been negotiated by AILA and had been the subject of controversy and confusion between the INS and attorneys who represent immigrants and their employers.

Mr. Cooper pointed out that these understandings are merely legal interpretations, rather than regulations and hence do not have the force of law. Therefore, they could be subject to change. Still, they reflect the current understanding of what the law means.

The first five items relate to the 3-year and 10-year bars under the Illegal Immigration Reform and Immigrant Responsibility Act of 1996 or IIRAIRA. As many of you are aware, the 3- and 10- year bars operate against a person who is "unlawfully present" (a term specially defined by the INS, which includes at least those who have overstayed the expiration date on their I-94, or entered without inspection) for certain time periods. The time periods for the bars to apply when the person has been unlawfully present are at least 180 days (for the 3-year bar) or one year (for the ten-year bar). A person who is unlawfully present for the 180 days or 1 year, as the case may be, and then leaves the U.S. voluntarily, will be barred from re-entering for the next 3 or 10 years.

1) If a person's I-94 card indicates "D/S" (duration of status), which is common for persons in F-1, F-2, J-1 or J-2 status, the person does not accrue "unlawful presence" which would render such a person subject to the 3-year or 10-year bar. Such unlawful presence time would apply if the person receives a removal order from an immigration judge or if the INS makes a finding, usually in connection with a denial of an extension of stay or change of status, that the person is out of status.

2) A foreign national who leaves the United States voluntarily and not under an order of removal after being placed in proceedings is not subject to the three-year bar if the foreign national 's unlawful presence was less than one year. Also, if the foreign national leaves the United States in such a situation, returns with a legal visa (such as an H-1B) and then travels without any further period of unlawful presence, the foreign national is not subject to the three-year bar upon return.

3) A foreign national who is paroled into the United States is considered "authorized by the Attorney General" to be in the U.S. and does not accrue unlawful presence so long as such a person does not violate the terms of the parole. (Persons may be paroled in a variety of situations, including but not limited to advance parole for adjustment applicants, persons paroled in for a hearing on an asylum application, or humanitarian parole.)

4) If a conditional resident timely files a condition removal application and the INS denies the application, the alien is not considered unlawfully present while awaiting removal proceedings and during removal proceedings in which the alien will renew the conditional residence removal application. If the condition removal application is not timely filed, the alien is considered unlawfully present unless the INS agrees that there was good cause for not filing it on a timely basis.

5) As some regular readers of the Law Office of Sheela Murthy Law Bulletin may be aware, if one files for an extension of stay or change of status on a timely basis, i.e. before the prior stay or status expires, then the person is generally considered in valid legal status. INS has stated that there is a 120 day period during which the person is authorized to remain and wait for the decision, without accruing any unlawful presence time.

For purposes of counting this 120 day period, the first day is considered to be the day after the expiration date on Form I-94 and not the date of filing the extension or change of status application. The INS is also considering AILA's position that foreign nationals with timely filed pending applications for change or extension of status should be treated as being "authorized by the Attorney General" during the time the application is pending with the INS, even after 120 days. As an editorial comment, we at the Law Office of Sheela Murthy believe that such an interpretation would be fair and logical, since generally if the application is pending more than 120 days, it is because of INS delay and not the fault of the applicant!

6) If a foreign national has been granted voluntary departure at the conclusion of proceedings but files a timely appeal, a voluntary departure bond must be timely posted.

7) An individual who is granted 212(c) waiver relief prior to the passage of AEDPA for an aggravated felony cannot be placed in removal proceedings for the same offense. This does not apply, however, if the alien is subsequently convicted of another crime.

8) A person who was, as of January 14 1998, the spouse or child of a "grandfathered" alien [i.e. a person eligible for the penalty fee provision of INA 245(i)] is also grandfathered for section 245(i) purposes. This means that the spouse or child retains his or her grandfathered status irrespective or whether or not the spouse or child adjusts with the principal. The spouse or child also retains grandfathered status even after losing the status of spouse or child, such as by divorce or by the child becoming 21 years of age.

9) Spouses or children accompanying or following to join a grandfathered alien are eligible to adjust under section 245(i). Therefore, even if the individual was not a spouse or child as of January 14, 1998, such after acquired spouse or child can adjust under section 245(i) if the person is a spouse or child at the time of the adjustment of status of the principal applicant. 

The above information in items 8 and 9 herein are also included in more detailed articles on the 245(i) "grandfather clause" in the May 1999 and July 1999 issues of the Law Office of Sheela Murthy, P.C. Law Bulletin.

10) Despite an unpublished, non-precedent opinion of the Board of Immigration Appeals that a foreign national is grandfathered for purposes of section 245(i) by virtue of applying for the DV lottery prior to January 15, 1998, the INS position is that such foreign nationals are not grandfathered.

11) INS has agreed that adjustment of status under NACARA (the special program for certain persons from Central America and Cuba) is mandatory, and not discretionary. However, if a waiver is needed, adjudication of the waiver is discretionary.

12) An alien does not accrue unlawful presence time when an immigration judge's order denying voluntary departure is reversed on appeal. The period from the denial of voluntary departure to the grant of voluntary departure on appeal will be considered authorized by the Attorney General. It should be noted that unless otherwise in a period of stay authorized by the Attorney General, the foreign national is accruing time unlawfully present while he or she is appealing the IJ ruling denying voluntary departure. Only after the foreign national prevails on appeal will the INS go back and determine that there was not net accrual of time unlawfully present during the time the ruling was on appeal.

13) For purpose of the three and ten-year bars, where the INS Asylum Unit has referred an asylum case, the asylum application is considered pending while the foreign national is in proceedings, while an appeal is pending with the Board, and while review is pending in federal court. Pre-asylum reform applications that are denied by the INS are also considered pending for the purpose of section 212(a)(9)(B)(iii)(II) during the period between denial by the asylum office and renewal in front of the immigration court. Once it is renewed, the case is covered by the broader provision governing asylum applications.

14) INS has agreed to administratively close OSCs (the charging document for deportation proceedings) and issue NTAs (the charging document to initiate a "removal proceeding" under the 1996 law). Such NTAs are issued where a non-aggravated felon respondent would have benefited in applying for 212(c) and where such a respondent was not eligible under AEDPA, in anticipation of a regulation which will allow the cases to be repapered.

15) INS has reinterpreted section 303(b)(2) of IIRAIRA and section 236(c) of the INA to require detention only when the alien was released from prison after the expiration of the TPCR (Transition Period Custody Rules). Any alien who was granted bond from INS custody before the expiration of the TPCR would not be subject to section 236(c). Such an alien has probably been released by now.

16) Unlawful presence does not accrue while a conditional suspension grantee or a conditional cancellation of removal grantee is in conditional grantee status.

17) For purposes of section 245(k), an alien may adjust under section 245(a) if certain conditions are met. These conditions are that the alien, as of the date of filing, has not violated status, has not engaged in unlawful employment, and has not had any violations of the terms and conditions of nonimmigrant admission, for a period in excess of 180 days. The 180 days are counted in the aggregate subsequent to the alien's last admission under which the foreign national is presently in the United States.

As an editorial note from the Law Office of Sheela Murthy, Section 245(k) applies only to employment-based adjustment applicants, and, unlike section 245(i), does not require any penalty fee.

18) The INS Commissioner issued a memorandum on April 19, 1999, wherein she discussed what status Cubans paroled from detention will have which will enable them to file for adjustment under the Cuban Adjustment Act. This memorandum was printed in 76 Interpreter Releases 684 (1999).

19) The ACWIA statute (the 1998 H-1B law) and INS regulations are silent on whether an employer can accept reimbursement or compensation of the $500 H-1B job training fee from a source other than the foreign national. INS is unable to speak to whether third party reimbursement violates any Department of Labor rules. The law is clear that the $500 fee may not be paid or reimbursed by the foreign national. The Department of Labor is preparing final regulations on the ACWIA fee after consideration of public comments.

20) With respect to 245(i) grandfathering, the INS continues to agree that the foreign national is grandfathered rather than any particular petition or application being grandfathered. The INS' present position is that the pre-January 15, 1998 petition or application must have been "approvable" at the time of filing or the labor certification application must have been properly filed in order to result in grandfathering of the foreign national. It is not relevant to grandfathering if a change of fact or law subsequent to the filing renders the petition or application subsequently non-approvable.

The above item is also included in more detailed articles on the 245(i) "grandfather clause" in the May 1999 and July 1999 issues of the Law Office of Sheela Murthy, P.C. Law Bulletin.

21) The issue of whether an alien is subject to the two-year home residence requirement under INA 212(e) is an issue of law to be determined by the Immigration and Naturalization Service.

If INS believes that such determinations are within their sole purview, we at the Law Office of Sheela Murthy wonder whether DOS has agreed to such a conclusion, or whether there is a turf battle between INS and DOS on this issue.

We at the Law Office of Sheela Murthy believe that the above INS guidance on these very important issues will provide clarity to many. These clarifications are a testament to the professionalism between INS General Counsel and AILA and we hope to continue our dialogue with senior INS officers on many other issues in years to come.