Q & A For Employers on the LIFE Act
Posted Mar 23, 2001; updated Sep 24, 2007
Question 1. What is the LIFE Act?
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The Legal Immigration Family Equity (LIFE) Act of 2000 contains four major provisions meant to provide work authorization and permanent status to hundreds of thousands of individuals who otherwise would be undocumented. These are: extension of Section 245(i), the V and K visas, and provisions for late legalization and family unity.
Question 2. What do employers need to know about the LIFE Act?
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The Four Provisions of LIFE are :
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Extension of Section 245(i)
Initially, an individual, who qualified for an immigrant visa (i.e. green card) based on either a family relationship to a U.S. citizen / permanent resident or based on a sponsoring employer, who was out of status, was allowed to pay a fee and get her/his green card without leaving the country. This provision was extended to individuals with petitions or labor certifications filed for them before April 30, 2001, who were physically present in the United States on December 21, 2000. One who meets these criteria, therefore, may be eligible to file a green card application and an application for an Employment Authorization Document (EAD), even if s/he is now out of status, but otherwise eligible for the status of Lawful Permanent Resident.
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Temporary Status for Spouses and Children of Permanent Residents Created a new V nonimmigrant category for the spouses and minor children of U.S. permanent residents. This temporary status only extends to the beneficiary of a family-based, second preference category (2A only) immigrant visa petition filed on or before December 21, 2000, who has been waiting for immigrant status for three years or more. This visa gives one a lawful status in the United States and work authorization until the green card application process is complete. [Note: The number of those who hold the V status is not significant at the time of this writing, as most of the immigrant visa petitions filed by December 21, 2000 have already been processed.]
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Temporary Status for Spouse of a U.S. Citizen
Expanded the use of the K nonimmigrant visa, which was only used for fiancé/es of U.S. citizens prior to the enactment of the LIFE Act. This provision allows the spouse of a U.S. citizen, who is waiting abroad for the approval of an immigrant visa, to enter the United States on a temporary visa and obtain work authorization while the green card application is pending.
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Late Legalization and Family Unity
Allowed members of certain class action lawsuits against the U.S. government, for wrongfully denying them legalization during the 1980s, to apply directly for permanent residence. Also allowed the spouses and children of these individuals to remain in the United States and obtain work authorization until they can get green cards. [Note: Because of the time-sensitive eligibility requirements that have already passed, this provision does not seem to apply to many people at the time of this writing.]
Question 3. What type of documentation will such an individual have as proof of eligibility to work?
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In most instances, one who is eligible for work authorization from the U.S. Citizenship and Immigration Services (USCIS) under one or more of these provisions, needs to obtain an Employment Authorization Document (EAD) before s/he may begin working. Once an individual obtains permanent residence, the USCIS issues a permanent resident card (“green card”). Both of these USCIS documents bear the individual’s photograph. However, an employer wishing to verify the work authorization status of an employee or prospective employee may not ask to see any specific document, or the employer may be accused of discrimination. In completing an I-9, which is an employment verification form, the choice of which document/s to present to the employer rests with the employee.
Section 245(i)
Question 4. What is the Section 245(i) in the LIFE Act?
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Section 245(i) allows a qualified individual to obtain a green card based on employer sponsorship or a family relationship without leaving the country, even if s/he is not in a legal status. To be eligible, an individual must be either: (1) the beneficiary of a petition filed by a U.S. citizen or permanent resident relative or sponsoring employer that was filed before April 30, 2001, with the Immigration and Naturalization Service (INS) (since renamed the USCIS), or (2) the beneficiary of a labor certification application filed by an employer with the Department of Labor (DOL) before April 30, 2001. The LIFE Act also specifies that, in order to use the Section 245(i) provision, the individual whose petition or labor certification was filed between January 14, 1998 and April 30, 2001 must prove that s/he was in the U.S. on December 21, 2000, the date this measure became law.
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Filing an immigrant visa petition or labor certification is the first step in the green card process that may take from several months to several years. For those who need labor certification to qualify, the second step is for the employer to file an immigrant visa petition on their behalf. Once an immigrant visa petition (as noted above) is approved, the individual must apply for actual permanent residency (the “green card”) by filing an adjustment-of-status application (Form I-485). Even if one does not apply to adjust status until long after April 30, 2001, as long as the original petition or labor certification was filed before that date, if s/he is qualified, the eligibility will not expire.
Question 5. Who could benefit from the new Section 245(i) provisions?
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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 the new Section 245(i). Most individuals who entered the U.S. without inspection, overstayed an admission, acted in violation of the terms of their status, worked without authorization, entered as crewmen, or were admitted in transit without visas, are considered out of status and would be unable to complete the process to become permanent residents in the U.S. without the benefits provided by Section 245(i).
Question 6. Does Section 245(i) grant immediate work authorization, protection from removal, or travel permission?
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No! Section 245(i) only allows individuals who illegally entered the United States or who are out of status for various reasons to adjust their statuses in the U.S. if they are otherwise eligible when their turn in the green card line comes. Certain individuals may be eligible for immediate adjustment; others may have to wait several years. Section 245(i) offers no protections or rights while individuals are waiting. They are not protected from removal from the U.S., if apprehended, and cannot obtain work authorization during this time. Once their applications for adjustment of status are filed, individuals may apply to the USCIS for their work authorizations and can legally work once the EAD cards are issued.
"K" Visa
Question 7. What is the K-3 visa and who is eligible?
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In order to address the severe backlogs in processing of petitions for family-based petitions, the LIFE Act expanded the use of the K visa (which formerly allowed only fiancé/es of U.S. citizens to enter the U.S. to get married) to include the spouses of U.S. citizens who already are married and are waiting outside of the U.S. for their immigrant visa petition approvals. Any minor child/ren of the foreign spouse also can be included in the petition. The visa allows them to join the U.S. citizen in the United States while awaiting their green cards. The visa allows them to work in the United States. To qualify for K status, the U.S. citizen must already have filed an immigrant visa petition with the USCIS for the foreign spouse, and also file a new, separate K petition for the spouse. Once the K petition is approved, the foreign spouse must apply for the K visa in the country where the marriage took place. Copyright © 2006, MURTHY LAW FIRM. All Rights Reserved
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