NEWSFLASH : Another Immigration Victory for 2000 – Updated
Posted Dec 22, 2000
Please note that most of the following article first appeared as a NewsFlash on December 18, 2000. In the version below, we have also added some important instructions about qualifying under the new extension to 245(i).
It appears that another immigration victory is looming for the pro-immigration Lobby for 2000! While many of us were delighted with the passage of the American Competitiveness in the Twenty First Century Act (ACTA) when President Clinton signed the law on October 17, 2000, it appears likely that many of us may get another Holiday gift before year's end!
Despite the various differences between President Clinton and the Republicans in the U.S. Congress, there is a strong likelihood of the passage into law of several key immigration law provisions in a Budget Reconciliation Bill. This was announced on Friday, December 15, 2000. These pro-immigration measures are issues that we have touched upon in previous issues of the MurthyBulletin and those that we and other pro-immigration lawyers and organizations have been lobbying for, for the last several years. These measures are likely to be included in the final budget package Bill on which the U.S. Congress is likely to vote and President Clinton is likely to sign, while still in office. The tide again seems to be turning in our favor with the U.S. experiencing one of the lowest unemployment records in its history and possibly the recognition of the incredible benefits that immigrants bring to our nation.
The terms of the agreement have been referred to as the Legal Immigration and Family Equity Act or LIFE. Summary highlights of LIFE's provisions are:
a) Section 245(i) grandfathering extended until April 30, 2001. Applicants will need to establish their physical presence in the U.S. at the time of LIFE's enactment.
By way of background, many readers may recollect when Section 245 (i) came into being to enable those who had reached the final stage of the Green Card process (with family- or employment-based petitions already approved by INS) but who had entered without inspection or overstayed their status, to complete their Green Card process by filing for Adjustment of Status in the U.S. with the payment of a $1,000 penalty fee, in addition to the standard I-485 processing fee. With the subsequent enactment of the Illegal Immigration Reform and Immigrant Responsibility Act or IIRAIRA in 1996, this provision became even more important, because IIRAIRA introduced the 3- and 10-year bars on re-entry for persons who left the U.S. after being out of status for certain periods of time, even if they were just going abroad to attend visa interviews. An appropriations bill in November 1997, however, included a "grandfathering" provision that limited the availability of 245(i), to cover only persons who started the Green Card process by January 14, 1998. The December 2000 appropriations bill merely extends the date for those eligible for 245 (i) protections and allows those who are already eligible for permanent residency to obtain their resident status in the U.S. without having to travel abroad and become subject to the 3- or 10-year bars.
As before, we do need to remind people that 245(i) is not a legalization program and does not give a person a basis for qualifying for a Green Card. It is still necessary to go through the regular employment- or family-based procedures. 245(i) also does not enable one to bypass the waiting lists that exist for the various categories. It does not affect the processing time for a Green Card. Rather, when the person eventually reaches the final stage of the process for filing and obtaining permanent residency in the U.S., 245(i) would enable him/her to file for adjustment of status within the U.S. as opposed to having to consular process abroad. So it affects only the location, not the timing, of the application.
Please note that 245(i) does not grant one permission to remain illegally in the United States and does not protect against deportation / removal. Rather, if an out-of-status person is still present in the U.S. at the time her/his Green Card case reaches the final stage, 245(i) is a way to retroactively cure the status problem.
In order to qualify under the extended 245(i), the following requirements must be met:
i) a labor certification application must be filed with the state Department of Labor or an immigrant petition must be filed with the INS by April 30, 2001.
ii) the person must show proof that s/he was physically present in the U.S. on the day the President signs the bill into law.
Please note that the President is expected to sign the bill by midnight on Thursday, December 21, 2000. Persons who think they may be able to benefit from 245(i) should consult with an immigration attorney.
b) New category of a temporary "V" visa created for the immediate family members of lawful permanent residents who have been waiting in the visa processing date backlog for three years or longer. Those who are eligible for this V visa would be granted protection from removal (formerly deportation), as well as granted temporary work authorization, while the application for permanent residency is pending.
c) New temporary "K" status created for spouses of U.S. citizens and their minor children. This provision expands the use of the "K" visa from being limited to fiance(e)s of U.S. citizens, to now include immediate family members (spouses and their minor children) of U.S. citizens, in cases where the U.S. citizen gets married abroad and the family members await approval of the Green Card application to enter the U.S. Like current K visa holders, these new "K" visa holders would be granted temporary work authorization, while the application is pending at the INS.
d) Opportunity to apply for adjustment for certain late legalization class members (CSS v. Meese, LULAC v. Reno, and INS v. Zambrano) who meet certain qualifications under LIFE.
e) Certain long awaited protection from removal and temporary work authorization granted to the immediate family members (spouses and children) of late legalization applicants.
Critics point out that LIFE fails to update the registry date to allow those who are illegal or out of status to file paperwork for legalization by showing that they have been residing in the U.S. as of a certain date (Vice President Al Gore had promised to update the registry date), does not address certain parity issues of NACARA, fails to provide for certain other-due process reforms, and will only provide limited relief for only about 4 months to allow those who fell out of status to pay the penalty fee (Section 245 (i) restoration) and continue the Green Card application process.
Notwithstanding its critics, the fact is that these provisions are long overdue and while we would have wanted complete restoration of Section 245(i) and certain other measures, all said and done, we have much to be thankful for this year. Let us hope the coming year, this century, and the Millennium continue to bode well for the dreams and aspirations of generations of immigrants who have helped to make the U.S. the greatest nation on earth.
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