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    Business Culture Health Politics Education IMMIGRATION Women's

    No; It is Not Amnesty

    By:Samuel N Omwenga, Esq.

    It was not exactly what immigration advocates wanted but President Clinton signed into law the Legal Immigration and Family Equity Act of 2000 (LIFE Act) on December 21, 2000. Many people have mistakenly referred this law as being “general amnesty” like the one Congress passed in 1986 that essentially allowed anyone who had been in the country illegally for seven year prior to apply to become permanent residents. However, LIFE Act is not general amnesty. The new law does have some amnesty features and some of its provisions stand to benefit hundreds of thousands of people who are out of status as well as others who have had to wait long periods of times to secure visas for their dependents but it is not general amnesty as such. In sum, the new law (1) allows people who are physically present in the US but out of status to obtain immigrant visas without leaving the country, if eligible to do so; (2) expands the use of “K” visas; (3) makes it possible for certain amnesty applicants to become permanent residents and (4) adds a new “V” visa for spouses and minor children of legal permanent residents who have been waiting for visas for years due to backlogs in processing these types of visas. Each of these provisions is briefly analyzed below.

    Temporary Restoration of Section 245(i)

    Section 245(i) is a provision in the immigration law that used to allow people who were out of status to adjust their status to permanent resident—if they were qualified to be classified as such—by paying a $1000 penalty fee. In 1996, however, this provision became an easy target for anti-immigration crusaders who, along with the Republican led Congress managed to have this provision phased out by January 14, 1998 after which it was not possible to rely on this section to adjust status in the US, if one was out of status when they became eligible to receive an immigrant visa (green card). Numerous efforts by immigration advocates to extend the life of section 245(i) or even make it permanent were met by stiff opposition from anti-immigration zealots on the Hill and the only thing these advocates managed to secure is the temporary restoration of this provision that was finally signed into law by the President on December 21, 2000.

    The temporary extension of section 245(i) is only good for four months, which means would be beneficiaries have until April 30, 2001 to have a petition for an immigrant visa (green card) filed in their favor. However, before utilizing this provision, one must prove that they were physically present in the United States when the president signed LIFE Act into law (December 21, 2000). Thus, if a petition for an immigrant visa (or an application for labor certification) is filed before April 30, 2001 in favor of a person presently in the US and that person is out of status, he or she will be able to adjust status to permanent resident without being required to leave the US when the he or she ultimately gets an approval to receive an immigrant visa (“green card”).

    The single most significant benefit of obtaining permanent residency in the US without leaving the country for out of status persons is the ominous 3 and 10 year bars to admissibility that would otherwise apply to anyone who attempts to reenter the US after being out of status for periods of 6 to 12 months or more than 12 months respectfully. Without Section 245(i), out of status people needed to return to their home countries and there complete the process for an immigrant visa at the U.S. consulate. However, if people have been out of status in the U.S. for more than 180 days, they would be barred from reentering the U.S. for at least 3 years, and even as long as 10 years, if they had been unlawfully present for more than 12 months. This possibility forced many otherwise law-abiding foreigners to opt to remain in the U.S. illegally rather than face the prospect of being denied reentry for years. Section 245(i) offers temporary relief for these good people: Under this section, an eligible individual can remain in the U.S. to obtain permanent residence through adjustment of status, and thus never depart the country to trigger the 3 and 10 year reentry bars.

    Section 245(i) is also significant because it allows people who have become out of status for a number of reasons adjust their status notwithstanding the reasons why they fell out of status. For example, most people 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, are considered out of status and would be unable to complete the process to become a permanent resident in the US; they must therefore leave the country to complete the process, which exposes them to the 3 and 10 year bars. However, with Section 245(i), these people can adjust their status right here in the US—but only if they act to have their petitions or applications filed before April 30, 2001.

    The filing of an immigrant visa petition by a U.S. citizen or U.S. permanent resident relative or submission of a labor certification application to the Department of Labor (DOL) by an employer constitutes the first step in a two-step process, however. The second step is acquiring permanent residency (“green card”) by filing an adjustment of status application (Form I-485). The new Section 235 (i) allows a person to adjust their status without leaving the country, even if the person does not apply for adjustment of status until after April 30, 2001 as long as the petition or labor certification is filed before the April 30, 2001 date and the petition or application is ultimately approved—no matter how long it takes for the approval to come through.

    However, as noted above, the new law requires that 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, must prove that they were physically present in the United States on the date that LIFE Act is signed into law, that is, on December 21, 2000. Proving physical presence in the US on the required date can be done in a number of ways, including submission of receipts bearing the beneficiary’s name with the December 21, 2000 date. However, as is the case with most discretionary matters before the INS, one must be wary of some immigration officer making a finding that the evidence is not sufficient, thus, seeking legal counsel before proceeding is advisable, given what is at stake.

    As to who qualifies to file a relative petition or labor certification application for a person seeking the benefits of Section 245(i), any U.S. citizen or legal permanent resident can file the petition. Any employer can also submit a labor certification to the DOL on behalf of the person seeking Section 245(i) relief. There is no guarantee that the filing of a petition or labor certification application will result in approval for an immigrant visa; indeed, in the case of labor certification, consulting an immigration attorney will significantly reduce the risk of denial because of the stringent technical rules and regulations that must be complied with before an application is successful.

    An important thing to note about Section 245(i) is that it does not grant work authorization, protection from deportation, or travel permission; Section 245(i) only allows people who illegally entered the United States or are out of status for various reasons to adjust their status in the U.S. if they are otherwise eligible. It offers no other protections or rights and therefore it is very important that people seeking Section 245(i) benefits seek advice from the people who can really help them, namely immigration lawyers and clinics with the expertise and knowledge to get the job done correctly. Self-help or use of people who have no expertise or knowledge of immigration law and practice would only guarantee serious problems.

    Other Relevant Provisions

    The new law has some other interesting provisions that may be of interest to you: A new temporary "V" visa was specifically created for spouses and minor children of legal permanent residents who have been waiting for visas for years due to backlogs in processing these types of visas. This new visa allows these dependents to obtain visas if they have been waiting for three years or more to get their visas. Prior to the addition of this new visa category, these dependents had no way of coming to join their spouses or parents before their visa became available—a process that took more than 7 years because of the backlog. However, with the new visa, these dependents will be able to travel to US sooner, if they can prove they have been waiting for visas for at least 3 years. Unlike Section 245(i) benefit, however, recipients of this visa presently in the U.S. would be protected from deportation and will be granted work authorization upon application.

    The new law also expands the use of temporary "K" visas to allow spouses of U.S. citizens and their children to travel to enter the U.S. and join their spouses rather than waiting until their green cards were approved as the law was before this new provision. Previously, this visa was only good for use by fiancees entering the U.S. to marry their U.S. citizens lovers within 90 days of entry but the expanded version applies to folks who are already married but have done so overseas. Holders of “K” visas can apply and receive work authorization permits.

    Finally, the new law provides about 150,000 people an opportunity to apply for legalization because the INS messed up in adjudicating their amnesty cases. The beneficiaries of this provision are class members of a number of class action lawsuits that ultimately succeeded in the courts to shame Congress into doing something about the problem. To find out whether you or someone you know is a class member who qualifies to legalize under this process, or for specific advice on how the new law may benefit you or someone you know, contact a good immigration attorney.