IMMIGRANT VISAS AND PERMANENT RESIDENCE: Persons seeking to reside in the United States on a permanent basis will seek to get either an immigrant visa from a US consulate outside the United States, or by applying for permanent residence through the Immigration Service in the United States. Both the immigrant visa and permanent residence through adjustment of status in the United States provide the same benefit: the right to reside on a permanent basis in this country, and in both cases the individual receives an alien residence card, also known as a green card.
GENERAL OVERVIEW: The issuance of immigrant visas or permanent residence is governed by the Immigration & Nationality Act, which was passed by the Congress of the United States in 1952, and which has been amended or changed repeatedly since, most recently in 1996. Now all aliens who wish to live permanently in the United States can be put into one of two categories, either non-quota or quota immigrants. There is no limit on non-quota immigrants who can enter the United States each year. Non-quota immigrants are the immediate relatives of United States citizens, which means the spouses, and unmarried children (under the age of 21), of US citizens, as well as parents of US citizens, as long as the child petitioning for the parent is at least 21 years of age.
Other aliens coming to live in the United States permanently are known as quota immigrants, and there is a limit on these persons who can become residents each year. Quota immigrants are divided into categories known as preferences. There are family-based preferences and employment-based preferences.
The family-based preferences are as follows:
* The family-based 1st preference is the unmarried sons and daughters of US citizens. These would be those who are unmarried and over the age of 21.
* The family-based 2nd preference is divided into two categories. Category 2A is the spouses and minor, unmarried, children of permanent residents. Category 2B is the adult, unmarried, sons and daughters of permanent residents.
* The family-based 3rd preference is the married sons and daughters of US citizens.
* The family-based 4th preference is the brothers and sisters of US citizens. The US citizen must be at least 21 years of age to file a petition for a brother or sister.
Each of these preferences has a limit on persons who can receive the permanent residence each year, and each country of the world also has its own quota.
The employment-based preferences are as follows:
* The employment-based 1st preference is divided into three categories: aliens with extraordinary ability, outstanding professors and researchers, and certain multinational executives and managers.
* The employment-based 2nd preference is divided into two categories: aliens who are members of the professions holding advanced degrees, or aliens of exceptional ability in the sciences, arts or business.
* The employment-based 3rd preference is divided into three categories: skilled workers, professionals, and other workers.
* The employment-based 4th preference is for religious workers including ministers of religion; professionals working in religious vocations or occupations; and other workers in religious vocations or occupations that work for US nonprofit religious organizations or at nonprofit religious organizations affiliated with qualified religious denominations.
* The employment-based 5th preference (investment visa) is for those aliens who have invested, or are actively investing capital in a new commercial enterprise in the United States which will create full-time positions for not fewer than 10 qualifying employees. The amount of the investment must be at least one million dollars, unless the investment is in a targeted employment area, in which case the investment can be $500,000.
Permanent residence based on family relationships falls into two categories. The first is immediate relatives, for which there is no quota or waiting list. Immediate relatives include unmarried children under the age of 21, spouses, and parents of United States citizens.
A child may include a legitimate child; or a step-child, as long as the relationship was created before the child's 18th birthday; or a child legitimated under the law of the child's residence or domicile, or under the law of the father's residence or domicile, as long as the legitimization took place before the child's 18th birthday; or an illegitimate child where the benefit is sought by virtue of the relationship with the natural mother, or the natural father if the father has or had a bona-fide parent child relationship with the person; or a child adopted while under the age of 16 years if the child has been in the legal custody of, and has resided with, the adopting parent for at least 2 years; or a child who is an orphan because of the death, disappearance, abandonment, or desertion by both parents, or where the sole surviving parent is incapable of caring for the child, and the child is under the age of 16.
To file for a spouse, the marriage must be valid under the laws of the country where it was performed and must not be against public policy. A fraudulent or sham marriage that is entered for the main purpose of circumventing the immigration laws does not enable an alien's spouse to get immigration benefits. However, where the marriage was valid at its inception, a petition can be approved even if the parties are not residing together at the time of the interview.
To file for a parent, the US citizen petitioner must be at least 21 years of age.
Other types of family petitions fall under the preference system. There is a limit on persons who can receive permanent residence each year in these categories and, so, the waiting list is often many years long.
The first preference is for unmarried sons and daughters of US citizens, over the age of 21. The second preference is for the spouses and unmarried sons and daughters (any age) of lawful permanent residents of the United States. The third preference is for the married sons and daughters of US citizens (any age). The fourth preference is for brothers and sisters of US citizens. The US citizen must be at least 21 years of age to file for a brother or sister.
A petition for permanent residence is filed on immigration form I-130. The US citizen or permanent resident who files the petition is known as the petitioner, while the alien relative who will be getting permanent residence is known as the beneficiary. If the beneficiary is outside the United States, he or she will apply for a permanent visa at a US consul in their home country, or in any other country where they are residing. In this situation, the petitioner must sign the form and send it, with proof of the relationship of the parties and the proper filing fee, to the immigration service office in the United States that handles these types of cases. The form I-130 lists the documents that must be submitted with the petition, as well as the address where the petition must be sent.
The immigration service center approves the petition and sends it to the National Visa Center in New Hampshire. That office will forward the next set of papers to the beneficiary. The beneficiary must then complete these forms and forward them to the US consul that will process the case. In addition, the beneficiary must obtain the needed documents needed to be presented at the final interview. When the consulate has finished its background checks, it will send an appointment letter to the beneficiary to appear at an interview, and to bring the requested documents.
If everything is in order, the beneficiary will receive his or her immigrant visa, as will any accompanying family members. They must enter the United States within six months at which time their passports will be stamped as permanent residents. They will receive work permission, and their permanent resident (green) cards will be mailed to them.
If the alien beneficiary is in the United States, he or she may qualify for adjustment of status with the Immigration Service, without the need of traveling to a US consulate outside the United States. Most persons can qualify for adjustment of status if they filed a petition or application with the Immigration service or US Department of Labor on or before January 14, 1998. (This will be discussed in detail later in the manual). However, often, if they are not legally in the United States they will have to pay a penalty fee to avoid having to return to their home country. Now the penalty fee is $1000.00, aside from the regular filing fees for the application, visa petition, and work permit if needed. Also, a fingerprinting fee is required.
The beneficiary will submit the application for adjustment of status with the petition, which is signed by the petitioner. The beneficiary must also include the necessary documentation, including proof of the relationship of the parties, a medical exam, photos, proof of support, and the required filing fee. In addition, the beneficiary may request a work permit while waiting for a final appointment date. The procedures for each immigration office are different; therefore it is important that you check with the individual office to learn their specific method of processing these cases. (A full list of all immigration & consular offices is included on our web site.) When the preliminary processing of the case is finished, the immigration service will schedule the beneficiary for an interview. During the interview, the petition and application for permanent residence will be reviewed and the parties questioned. If this is a petition based on a marriage, there is a good likelihood that the petitioner and beneficiary will be separated and asked questions outside the presence of each other in order for the immigration examiner to confirm the truth of the marriage. In these cases, it is very important that you take with you to the interview documentary proof that you reside together such as tax returns, leases, ownership of property, insurance policies, etc. Naturally, if a child has been born of the marriage, you should take the child's birth certificate with you. Also, remember that the immigration service wants to see original documents.
If everything is in order, your application will be granted, and proof of your permanent residence will be stamped in your passport. The resident (green) card will be mailed to you within 3-6 months. However, since you are a permanent resident from that date, you can travel outside the United States and you are permitted to be lawfully hired while waiting for your card to come.
If you are not approved for permanent residence because of the commission of a crime or because of some other ground of inadmissibility, you might still be able to get a waiver. If the petition is denied, and you wish to appeal, you would file your appeal with the Board of Immigration Appeals on immigration form I-290 B. If your application for adjustment is denied, you could renew your application at a hearing before an immigration judge. For more information on appeals, click here.
EMPLOYMENT BASED RESIDENCY AND OFFERS OF EMPLOYMENT: There are five (5) immigrant visa categories available to aliens who wish to come to the United States for the principal purpose of employment. These are known as the employment-based 1st, 2nd, 3rd, 4th, and 5th preference categories. This section will discuss the first three of these categories. The 4th employment-based category, religious workers, is discussed later. The 5th employment-based category, permanent resident investors, is also discussed later.
The vast majority of persons obtaining permanent residence in the United States through employment do so in one of the first three employment-based categories. The employment-based 1st preference, also known as the priority worker category, is divided into three groups. Preference category EB1(1) is for aliens with extraordinary ability. This is an alien with a level of expertise showing that the person is one of that small percentage who has risen to the very top of endeavor. The petition filed for an alien of extraordinary ability must be accompanied by proof that the alien has sustained national or international acclaim and that his or her achievements have been recognized in the field of expertise. The regulations set forth the type of documentation that must be submitted as proof of this achievement.
Neither an offer of employment in the United States nor a labor certification is needed for this classification; however, the petition must be accompanied by clear proof that the alien is coming to the United States to continue work in expertise.
Preference category EB1(2) is for those aliens who are outstanding professors and researchers, and who have an offer of employment from a prospective United States employer. A labor certification is not needed for this classification.
A petition for an outstanding professor or researcher must be accompanied by proof that the professor or researcher is recognized internationally as outstanding in the academic field specified in the petition. The regulations set forth what type of proof must be submitted to meet these criteria. The EB1(3) category is for certain multinational executives and managers. These are persons who have been admitted to the United States to work in, and who are currently working in, managerial or executive positions with the same international corporations or organizations which they were continuously employed as managers or executives outside the United States for at least one out of the three years before they were admitted; and aliens outside the United States who will be engaged in the United States in managerial or executive positions with the same international corporations or organizations which they have been continuously employed as managers or executives outside the United States for at least one of the immediately preceding three years. The terms manager and executive are more thoroughly defined in the regulations. It should be noted that these provisions provide for a waiver of the labor certification requirement. To qualify for this waiver, the US business must have been in operation and doing business for at least one year before the filing of the waiver application. As stated above, no labor certification is needed for this classification; however, the prospective employer in the United States must furnish a job offer as a statement that shows that the alien is to be hired in the United States in a managerial or executive capacity. Such letter must clearly describe the duties to be done by the alien.
The employment-based 2nd preference category(EB2)is for aliens who are members of the professions holding advanced degrees, or aliens of exceptional ability. Advanced degree means any United States academic or professional degree or a foreign equivalent degree above that of baccalaureate. The United States baccalaureate degree or a foreign equivalent degree followed by at least five (5) years of progressive experience in a specialty occupation shall be considered the equivalent of a master's degree.
Exceptional ability in the sciences, arts, or business means a level of expertise greatly above that ordinarily encountered in the sciences, arts, or business. Profession means one of the occupations listed in Section 101(a)(32) of the Act, as well as any occupation for which a United States baccalaureate degree or its foreign equivalent is the minimum requirement for entry into the occupation. The regulations set forth the type of documentation needed to establish that the alien has the required degree or that the alien is of exceptional ability in the sciences, arts, or business. Every petition under this classification must be accompanied by an individual labor certification from the Department of Labor, or the Immigration Service may exempt the requirement of a job offer, and of a labor certification, for aliens of exceptional ability in the sciences, arts, or business if such an exemption would be in the national interest. To apply for this exemption the alien must submit weighty proof to support the claim that such exemption would be in the national interest.
The employment-based 3rd preference category (EB3) is divided into three areas: skilled workers, professionals, and unskilled workers.
A "skilled worker" means an alien who is capable, at the time of petitioning for the classification, of performing skilled labor (calling for at least two (2) years training or experience), not of a temporary or seasonal nature, for which qualified workers are not available in the United States. Relevant post-secondary education may be considered as training for this provision.
"Professional" means a qualified alien who holds at least a United States baccalaureate degree or a foreign equivalent degree and who is a member of the professions.
"Other worker" (unskilled) means a qualified alien who is capable, at the time of petitioning for the classification, of performing unskilled labor (needing less than two (2) years training or experience), not of a temporary or seasonal nature, for which qualified workers are not available in the United States.
Every petition under the employment-based 3rd preference category must be accompanied by an individual labor certification from the Department of Labor. In addition, the alien must submit documentation to support his or her claim to the education and /or experience requirements of the labor certification.
NOTE: It is extremely important to try to classify the alien as a skilled, versus an unskilled worker. The approval time for a skilled worker application may take only one to two years, while an unskilled worker application may take ten years for final approval, because of the different waiting lists for each category.
To qualify for a labor certification, the alien needs a US employer who is willing to file an application on his or her behalf. The application is filed with the Labor Department in the area where the alien will be employed. The Labor Department regulations are quite lengthy, and often cumbersome. They require that the employer advertise the position sought in a professional journal, or for a period of three (3) consecutive days in a local newspaper of general circulation. In addition, a notice of the job opportunity must be posted at the employer's place of business, and the job must be listed with the proper office of the state employment service.
The purpose of this recruitment effort is to establish whether there is any US worker qualified and available for the position, and that the wage being offered the alien is the "prevailing wage" for that type of position in that area of the country. If US workers are qualified and available, or if the offered wage is too low, the Department of Labor will not approve the application for a labor certification.
If the application is approved, a labor certification is issued, and the employer may then file a petition with the immigration service to classify the beneficiary in the proper employment category. If the application is denied, the employer may file an appeal to the Board of Alien Labor Certification Appeals in Washington, DC.
Each of the above EB1, EB2, and EB3 petitions must be filed on immigration form I-140, Petition for Immigrant Worker. This must be filed with the Immigration Service Center that has jurisdiction over the alien's intended employment. The documentation needed to be submitted with the petition is outlined in the regulations.
PERMANENT RESIDENT INVESTORS
The employment-based 5th preference category, also known as employment- creation visas, is available to those investors who have invested, or are investing, lawfully obtained capital in a new commercial enterprise employing at least 10 full-time US workers. The amount of the investment must be at least one million dollars, unless the investment is to be in a targeted employment area, in which case the investment need only be five hundred thousand dollars.
To qualify as an immigrant investor, the alien must invest in a new commercial enterprise. This can be done by starting a new business; by purchasing and restructuring a new business; by expanding and substantially changing the net worth or number of employees in a business; or by investing in a troubled business, so that there is a forty percent increase in the net worth or in the number of employees of the business.
Commercial enterprise means any for-profit activity formed for the conduct of lawful business including, but not limited to, a sole proprietorship, partnership, holding company, joint venture, corporation, business trust, or other entity which may be publicly or privately owned. This definition includes a commercial enterprise consisting of a holding company and its wholly owned subsidiaries, if such subsidiary is engaged in a for-profit activity formed for the ongoing conduct of a lawful business.
Capital means cash, equipment, inventory, other tangible property, cash equivalents, and indebtedness secured by assets owned by the alien entrepreneur, provided that the alien entrepreneur is personally and primarily liable and that the assets of the new commercial enterprise upon which the petition is based are not used to secure any of the indebtedness. All capital shall be valued at fair market value in United States dollars. Assets acquired, directly or indirectly, by unlawful means (such as criminal activities) shall not be considered capital for purposes of the Act.
To qualify in the EB5 category, the investment must create full-time employment for at least 10 US citizens, lawful permanent residents, or other immigrants lawfully authorized to be employed in the United States. While an investor may employ his family members in the new enterprise, the spouse and children do not count toward the 10-employee minimum. Employee means an individual who provides services or labor for the new commercial enterprise and who receives wages or other remuneration directly from the new commercial enterprise. This definition does not include independent contractors. Full- time employment means employment of a qualifying employee by the new commercial enterprise in a position that requires a minimum of 35 working hours per week.
As stated previously, the investment must be $1 million unless the investment is in what is known as a "targeted area." A "target area" is defined as a rural area or an area that has experienced high unemployment. An area not within a metropolitan statistical area or the outer boundary of any city or town having a population of 20,000 or more is considered a rural area. The Department of Commerce of each state publishes a list of its targeted areas, and should be contacted in order to obtain a copy.
The actual evidence required to establish the amount and type of investment is quite substantial, and is outlined in great detail in the regulations.
In order to deter investor/employment creation visa fraud, the law provides for a two-year conditional permanent residence status. If, at the end of two years, no fraud is found in the petition process, the conditions will be removed and permanent residence will be granted.
A petition for employment creation aliens is filed on immigration form I- 526, Immigrant Petition for Alien Entrepreneur. This petition must be filed with the immigration service center having jurisdiction over the place of the proposed investment. When the petition is approved, the alien, together with the spouse and unmarried minor children, will file their applications for immigrant visas at a US consulate if they are outside of the United States, or will file for adjustment of status with the Immigration Service if they are in the United States and eligible for adjustment of status.
OTHER METHODS FOR PERMANENT RESIDENCE-- RELIGIOUS WORKERS/VISA LOTTERY/REGISTRY/LULAC/CSS CASES
This section will discuss additional ways of obtaining permanent residence in the United States. One way is under the employment-based 4th preference category (EB4), which is for religious workers. A petition under this preference category may be filed by or for an alien, who (either abroad or in the United States) for at least the two years preceding the filing of the petition has been a member of a religious denomination that has a bona fide nonprofit religious organization in the United States. The alien must be coming to the United States solely for carrying on the vocation of a minister of that religious denomination, working for the organization at the organization's request in a professional capacity in a religious vocation or occupation, or working at a religious vocation or occupation for the organization or a bona fide organization which is affiliated with a religious denomination and is exempt from taxation as an organization described in Section 501(c)(3) of the Internal Revenue Code, at the request of the organization. All three types of religious workers must have been performing the vocation, professional work, or other work continuously (either abroad or in the United States) for at least the two-year period immediately preceding the filing of the petition. (NOTE: Petitions for religious professionals and other religious workers must be filed on or before September 30, 2000.)
A petition for a religious worker is filed on immigration form I-360, and is filed with the immigration service center that has jurisdiction over the area where the alien will be employed. When the petition is approved, the alien, with the spouse and unmarried minor children, can file their applications for immigrant visas with a US consul if they are outside the United States, or they can file for adjustment of status with the immigration service if they are in the United States and are eligible for adjustment of status.
Another method for getting permanent residence is through the diversity, or visa lottery program, also known as the DV-1 program. Each year 55,000 visas are allocated on a random basis to persons who might not otherwise be eligible to obtain permanent residence in the United States. An alien shall be eligible to compete for consideration for visa issuance during a fiscal year only if he or she is a native of a low-admission foreign state, as decided by the Attorney General, for the fiscal year in question; and if he or she has at least a high school education or its equivalent or, within the five years preceding the date of application for a visa, has two years of work experience in an occupation needing at least two years training or experience.
The application process is held once a year. No more than one petition may be submitted by, or for, any alien for consideration during any single fiscal year. If two or more petitions for any single fiscal year are submitted by, or for, any alien, then all such petitions shall be void and the alien shall not be eligible for consideration for visa issuance during the fiscal year in question.
Any alien eligible for consideration shall file his or her petition with the Department of State according to the instructions in the application notice. These instructions can be somewhat complicated and confusing. However, our web site does provide a complete applications package that explains in detail the entire application process including a sample completed application form. We also provide you with detailed instructions on where and when to file the application, as it must be received by the State Department within a very specific time frame. We also provide full instructions on the high school and prior employment requirements.
Registry is a provision in section 249 of the Immigration and Nationality Act. It provides that a person may be granted permanent residence in the United States if he or she can prove that they have resided in this country continuously since before January 1, 1972. Departures from the United States during this time will not prevent permanent residence as long as they are not so lengthy as to be an abandonment of residence.
To qualify for registry, the alien must show that he or she is a person of good moral character, is not inadmissible to the US as a criminal, procurer, subversive, narcotics law violator, or alien smuggler, and must not be ineligible for citizenship. The application is filed on immigration form I-485, with biographic form G-325A, photographs, proper filing fees for the application and fingerprints, and proof that the person has resided continuously in the United States since before 1972. No medical exam is needed.
If the application is approved, the alien is granted lawful permanent residence status from the date of the interview. If the application is denied, the applicant may renew the application for registry in removal proceedings before an immigration judge.
The LULAC and CSS programs: In 1986, the Congress of the United States passed an amnesty law allowing aliens who had resided continuously and illegally in the United States, without interruption since before January 1, 1982, to apply for permanent residence status. However, one of the law's provisions provided that the application had to be filed before November 6, 1988. The immigration service refused to accept applications from those persons who had left the United States before or during the required period, though they had later reentered the United States to again assume an unlawful status in this country. Some of these denied applicants filed suit in federal court seeking the right to file their applications, although the time for filing had by that time passed. The courts in California, in the LULAC and CSS cases, agreed with the aliens, and allowed them to file their applications late. The immigration service has appealed these decisions, and these appeals have gone as high as the US Supreme Court. The Supreme Court sent the cases back to the lower courts for them to consider the issues again. Meanwhile, these aliens have work authorization, and they may get permission to travel outside the United States for emergency reasons, however, they do not have permanent residence status, and their future chance of success looks grim.
The immigration service has filed motions to dismiss these cases, relying on the Supreme Court decision, as well as the recently enacted Immigration Act of 1996, and a decision on these motions is now undecided. If the courts finally reject the aliens' cases, these groups (totaling nearly 400,000 persons) will be left in an unlawful status in the United States. Since their outlook is not good, many legal advocates suggest that they seek some other method of getting lawful status in the United States.
Revival of 245(i) and Introduction of Two New Visas
TEXT OF NEW LAW-("LIFE"): Legal Immigration and Family Equity Act (click on link for .pdf file)
THE EXTENSION OF SECTION 245(i): FREQUENTLY ASKED QUESTIONS (Provided by the American Immigration Lawyers Association) December 21, 2000 (click on link)
The Omnibus Consolidated Appropriations Act of 2001, which Congress passed on December 15, contains several immigration-related provisions including the reinstatement of Section 245(i) until April 30, 2001. The President signed the Bill on December 21, 2000. Entitled the Legal Immigration and Family Equity Act ("LIFE"), this legislative package represents a compromise by Republicans who rejected the Democratic proposal known as the Latino Immigration Fairness Act ("LIFA").
Before the 1996 law, certain illegal immigrants were permitted to legalize their status with the payment of a fine. The 1996 law changed all that, generally calling for illegals to return home under all circumstances except asylum.
Under the new Act, Section 245(i) of the Immigration and Nationality Act becomes temporarily available to illegal immigrants present in the United States on the date of the enactment, December 21, 2000. Under the provision, a person who--if it weren't for their illegal status--would qualify to immigrate (such as the spouse of a US citizen), may adjust status after payment of a $1000 fine is made, and providing the application is submitted before April 30, 2001. For many people with status violations, leaving the US means they are subject to a three to ten year reentry bar.
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 a person is eligible for permanent residence, but not eligible for adjustment of status, that person might still get permanent residence by leaving the U.S. and finishing 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 maybe as long as 10 years. Under Section 245(i), an eligible person can remain in the U.S. to get permanent residence through adjustment of status, and never trigger these entry bars. (Once permanent residence is obtained, these entry bars no longer apply.)
To take advantage of the 245(i) grand fathering, individuals must have an immigrant visa petition or a labor certification application on file with the Immigration Service or Department of Labor by April 30, 2001. The "grandfather"clause of Section 245(i) is extended from January 14, 1998 until April 30, 2001. So, 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 needed. 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 to be eligible for Section 245(i) adjustment of status.
This means that you must have either an employer or a relative submit an application for labor certification or a visa petition for you by April 30, 2001. In other words, you need a US citizen parent, spouse, adult child, or adult brother or sister; or a lawful permanent resident spouse or parent (if you are single); or a US employer that wishes your services; to file a petition for you before 4/30/01. It is unnecessary that the Labor Department or the INS approve your application or petition by that date, only that it be filed. Also, even if the petition or application is never approved, ultimately denied, or withdrawn, as long as it was "approvable when filed" you are entitled to the benefits of Sec. 245(i). However, applications or petitions that are deficient because they were submitted without the proper fee, or because they were fraudulent, or without any basis in law or fact, are not considered to be "approvable when filed" and confer no benefits under Sec. 245(i).
Spouses and children of the principal applicant are considered "derivative beneficiaries" and they would also be grand fathered in under the new law. This applies even for children who turn 21, or for divorced spouses.
Another good feature is that there is no requirement that the person adjust status in the same preference category that they were petitioned for. In addition, once you qualify for benefits under Sec. 245(i), your eligibility never expires.
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.) There is no requirement that you be in the US lawfully, only that you be physically present in the US when the law is signed.
The New"V" Visa: NEW TEMPORARY VISA FOR SPOUSES AND MINOR CHILDREN OF LEGAL PERMANENT RESIDENTS AWAITING AN IMMIGRANT VISA : The LIFE Act creates a new temporary visa, a "V' visa, that would allow the spouses and minor children of lawful permanent residents ("green card" holders) who are waiting their turn in the visa quota backlog line to enter the United States and be granted work authorization. They would be able to apply for the visa without leaving the US, and they would be eligible for the visas even if they entered the US without authorization or overstayed a visa. Formerly, spouses and minor children of legal permanent residents have had to wait four or five years out of the country and unable to visit their spouse or parent while waiting for green card priority dates to become current. (Today they are prevented from getting a visitor visa because they are intending immigrants).
Allows the spouses and minor children of lawful permanent residents (the Family 2A category only) who have been waiting more than 3 years for a green card, to enter the United States and be granted work authorization. To qualify the spouse or child must meet the following criteria:
(1) A green card petition was filed on or before enactment of the law. The sponsoring permanent resident must already have filed a green card petition for the spouse or minor child with the INS on the date that the LIFE Act becomes law.
(2) Must have been waiting at least 3 years. The petition must either have been pending with the INS for three years or more or, if the petition has been approved, the spouse or minor child must have been waiting at least three years for their 'turn" in the green card line.
(3) Waiver of Grounds of Inadmissibility and Adjustment of Status. The law provides that periods in the United States in unauthorized status will not prevent someone from getting a V visa (Sec. 212(a)(9)(B) shall not apply) The law also would allow individuals already in the United States to apply to "adjust status" to the new V category, even if they are in the United States unlawfully (Sec. 212(a)(6)(A), (7), and (9)(B) shall not apply). With the reinstatement of Section 245(i), V visa holders will be eligible to adjust their status to legal permanent resident under that section.
These individuals may later apply to adjust status to permanent residence based on their sponsor's petition by paying a $1000 fee, as long as they were physically present in the United States between July 1 and October 1, 2000.
The "V" visa also would protect people from deportation, grant work authorization, and would allow adjustment for certain spouses and minor children who reside in this country and who are out of status. These benefits, directed to people who are out of status, are granted only to certain spouses and minor children of legal permanent residents; others are not granted these benefits, which go beyond that offered by a restored Section 245(i). Because Section 245(i) grants eligible people only the potential to adjust when they become eligible, but grants no legal status until then, the restoration of this much-needed provision would grant more people a lesser benefit. Further, it appears that the "V" visa is available only to those certain spouses and minor children who are in this country from July 1, 2000 to October 1, 2000.
Spousal reunification provision/expanded K Visa: This new visa, a variation on existing "K" status, would cover spouses of US citizens and their children who are living abroad. By expanding the eligibility for a K visa, the new law will allow the spouse of a U.S. citizen to enter the United States and get work authorization while waiting for the petition to be approved. The current K visa allows fiancees of US citizens to come to the US for marriage, and to work while awaiting the marriage. Spouses usually have to wait for up to a year to join their American wife or husband, and permission to visit meanwhile is rare. Spouses approved for the new K visa would be granted temporary work authorization. The bill provides that this new K status is available both to individuals with currently undecided green card petitions and future applicants.
Any minor children who are accompanying the spouse can be included in the petition. To qualify the spouse and minor children must meet the following criteria:
(1) An immigrant visa petition must be previously filed. The law requires that the U.S. citizen file an immigrant petition before a visa can be issued to the spouse abroad. The K visa will allow the spouse abroad to enter the U.S. and await the approval of the petition.
(2) Recipient of the K visa must be outside the United States. The law only authorizes the visa to be issued by a consular officer outside the United States. There is no provision to "adjust status" for someone already in the United States in an unlawful status.
(3) The K visa petition must be filed in the United States by the U.S. citizen spouse.
(4) Must have a valid non-immigrant visa when the K visa is issued. Where the marriage to the U.S. citizen happened outside the United States, the K visa recipient must have a valid non-immigrant visa issued by the consulate where the marriage occurred.
ADJUSTMENT OF STATUS OF CERTAIN LATE LEGALIZATION CLASS MEMBERS
To qualify a person must prove that he or she:
(1) Filed a written claim, before October 1, 2000, for class membership in CSS v. Meese, LULAC v. Reno, or INS v. Zambrano (three of the various class action lawsuits filed against the INS for their improper handling of the 1986 amnesty program).
(2) Entered the United States before January 1, 1982 and resided continuously in the United States in an unlawful status through May 4, 1988.
(3) Was continuously physically present in the United Sates beginning on November 6, 1986 and ending on May 4, 1988 (brief, casual and innocent absences will not hinder a finding of continuous physical presence).
(4) Files an application for adjustment of status with the Attorney General within one year of the date which the Attorney General issues final regulations to implement the new law. The Attorney General is required to issue those regulations within 120 days after enactment.
(4) Has not been convicted of any felony or three or more misdemeanors, has not assisted in the persecution of any person (on account of race, religion, nationality, political opinion or membership in a particular social group), and is registered or registering under the Military Selective Service Act (if required to do so under that Act).
(4) Is not inadmissible to the United States as an immigrant. The Attorney General may (for humanitarian purposes, to assure family unity, or when it is in the public interest) waive any of the grounds of inadmissibility except those referring to criminals, drug offenses, security grounds, and public charge grounds. In addition, the Attorney General may grant a waiver of the grounds of inadmissibility related to aliens seeking admission after previous removal and aliens present after previous immigration violations.
(4) Can pass the naturalization exam (on an understanding of basic civics and the ability speak, read, and write normal English), or show that they are satisfactorily pursuing a course of study (recognized by the Attorney General) to achieve such an understanding of English and civics.
Relief Granted Under the Law:
Eligible applicants will apply directly for permanent residence, instead of for temporary resident status.
* The Attorney General is required to establish a process under which an alien who has become eligible to apply for adjustment of status as a result of the enactment of this law and who is not physically present in the United States may apply for such adjustment from outside the country.
* Applicants who submit a prima facie application under this law are entitled to a stay of deportation, work authorization, and permission to travel while their application is pending.
* The limit on judicial review under IIRAIRA (Section 377) will not apply to applicants under these changes and they will be entitled to the same review allowed by the 1986 laws.
* Newly legalized persons will not be disqualified from receiving certain public welfare aid. (Under the original Section 245A applicants were disqualified from certain assistance for 5 years after their application was filed). However, they may still be subject to restrictions bases on the 1996 Welfare Reform Law.
* The confidentiality provisions of Section 245A (that generally prevent the information submitted on the application from being used for any purposes except criminal prosecution) will apply, except information submitted by an applicant under the new law may be used in proceedings to rescind an adjustment of status.
GRANTS PROTECTION FROM DEPORTATION AND WORK AUTHORIZATION TO THE SPOUSES AND CHILDREN OF LATE LEGALIZATION APPLICANTS
Consistent with laws passed in 1990 to protect the family of legalization applicants who were already in the United States, the LIFE Act prevents the deportation of the spouses and minor children of a person who is applying for late legalization under the new law. Also consistent with prior laws, these family members are eligible for work authorization.
To be eligible for benefits a person must prove that he or she is:
* The spouse or unmarried child of a person who is eligible for adjustment of status because of the late legalization provisions of the LIFE Act.
* Entered the United States before December 1, 1998 and resided in the United States on that date.
* Has not been convicted of a felony or three or more misdemeanors in the United States, has not assisted in the persecution of any person (on account of race, religion, nationality, political opinion or membership in a particular social group), or is otherwise not a danger to the community of the United States. Relief Granted Under the Law.
* Eligible people will be protected from deportation for violations of status in the United States but will continue to be deportable for other grounds of deportation, including criminal activity.
* Eligible people will be entitled to work authorization in the United States.
* If the applicant for benefits under the late legalization provisions of the LIFE Act is applying from outside the United States, the Attorney General is required to establish a process by which eligible spouses and children may be paroled into the United States to get the benefits under the new law.
PROVIDES CERTAIN WAIVERS AND PROTECTIONS AGAINST DEPORTATION FOR APPLICANTS UNDER NACARA AND HRIFA
Waiver of certain grounds of inadmissibility: In applications for adjustment of status under NACARA and HRIFA, the Attorney General may waive certain grounds of inadmissibility relating to re-entry after a previous order of deportation or removal (Sec. 212(a)(9)(A) and (C)O.
THE EXTENSION OF SECTION 245(i): FREQUENTLY ASKED QUESTIONS, December 21, 2000(Provided by the American Immigration Lawyers Association)
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, 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 a person 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 finishing 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 maybe as long as 10 years. Under Section 245(i), an eligible person can remain in the U.S. to obtain permanent residence through adjustment of status, and 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 finished. 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? 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 explaining some of the provisions of the new law stresses 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 exact date to qualify for 245(i). The Immigration and Naturalization Service (INS) should therefore be flexible in the types of proof it will accept to establish physical presence on the day of enactment. For example, the kind of proof of physical presence INS ordinarily accepts showing 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 fulfill 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) 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 simu ltaneously 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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Sunday December 23, 2007