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Clinton Signs LIFE (Legal Immigration and Family Equity) Act and LIFE Act Amendments

President Clinton, on December 21, 2000, signed the bills that contain the LIFE Act and the LIFE Act Amendments (with the extension of Section 245(i), the new V and K visas, the late legalization provisions, and the NACARA/HRIFA technical amendments).   A Frequently Asked Questions on the extension of 245(i) and a summary of the provisions included in these bills are included below.

THE EXTENSION OF SECTION 245(i)

FREQUENTLY ASKED QUESTIONS

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, in order 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 an individual 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 completing 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 perhaps as long as 10 years. Under Section 245(i), an eligible individual can remain in the U.S. to obtain permanent residence through adjustment of status, and thus 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 completed.

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 and how do you prove compliance with it?

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 clarifying some of the provisions of the new law emphasizes 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 precise date to qualify for 245(i). The Immigration and Naturalization Service (INS) should therefore be flexible in the types of evidence it will accept to establish physical presence on the day of enactment. For example, the kind of evidence of physical presence INS ordinarily accepts demonstrating 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 accomplish 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) in order 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 at the same time 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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Legal Immigration and Family Equity Act (LIFE Act)

FINAL SUMMARY

REAUTHORIZES SECTION 245(i) UNTIL APRIL 30, 2001

Under the LIFE Act, the “grandfather” clause of Section 245(i) is extended from January 14, 1998 until April 30, 2001. As a result, 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 necessary.  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 (December 21, 2000) in order to be eligible for Section 245(i) adjustment of status.

CREATES A NEW TEMPORARY VISA FOR SPOUSES AND MINOR CHILDREN OF LEGAL PERMANENT RESIDENTS AWAITING AN IMMIGRANT VISA

In order to address the severe backlogs on the availability of visas for families, the LIFE Act provides a remedy for the spouses and minor children of legal permanent residents. Under current law, because these individuals are intending immigrants, there is no way for them to legally come to the United States, even for a short visit. By creating a new “V” visa, the law grants some family members a legal status and work authorization in the United States.

  • New “V” Visa: 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. In order to qualify the spouse or child must meet the following criteria:

    • 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 as of the date that the LIFE Act became law (December 21, 2000).

    • 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.

  • 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 obtaining a V visa (§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 (§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.

CREATES A NEW TEMPORARY STATUS FOR SPOUSES OF U.S. CITIZENS AWAITING AN IMMIGRANT VISA

In order to address the severe backlogs on the processing of petitions for family members, the LIFE Act creates a remedy for the spouses of United States citizens who are outside of the United States and waiting for the approval of an immigrant petition.  Any minor children who are seeking to accompany the spouse are also provided protection.   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 obtain work authorization while waiting for the petition to be approved.

  • Expansion of Fiancée Temporary Visa Category. The bill expands the use of the “K” visa, which currently allows fiancées of U.S. citizens to enter the United States for the purposes of getting married, to be used by spouses of U.S. citizens who are already married and are waiting outside of the United States for the approval of their immigrant visa petitions.  Any minor children who are accompanying the spouse can be included in the petition. In order to qualify the spouse and minor children must meet the following criteria:

    • 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.

    • Recipient of the K visa must be outside of the United States. The law only authorizes the visa to be issued by a consular officer outside of the United States. There is no provision to “adjust status” for someone already in the United States in an unlawful status.

    • The K visa petition must be filed in the United States. The petition for the K visa must be filed in the United States by the U.S. citizen spouse.

    • If marriage occurs outside of the U.S., the K visa must be issued by the consulate where the marriage occurred. Where the marriage to the U.S. citizen occurred outside of the United States, the statute says that, at the time of admission, the alien must have “a valid non-immigrant visa issued by a consular officer in the foreign state in which the marriage was concluded.”

  • Available to current and future applicants. The bill provides that this new K status is available both to individuals with currently pending green card petitions and future applicants.

  • Work Authorization. Current law provides that K visa holders are permitted to work in the United States.  This provision would apply to these new K nonimmigrants as well.

ALLOWS FOR THE ADJUSTMENT OF STATUS OF CERTAIN LATE LEGALIZATION CLASS MEMBERS

Who Is Eligible for Relief:

  • The LIFE Act makes some modifications to the provisions of the 1986 amnesty (Section 245A of the INA) and provides an opportunity to apply for this relief only to those people who were part of certain class action lawsuits against the INS for their improper handling of the 1986 amnesty program.  To qualify a person must prove that he or she:

  • 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).

  • Entered the United States before January 1, 1982 and resided continuously in the United States in an unlawful status through May 4, 1988.

  • 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 interrupt a finding of continuous physical presence).

  • Files an application for adjustment of status with the Attorney General within one year of the date on 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.

  • 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).

  • 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 relating 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.

  • Is able to pass the naturalization exam (relating to an understanding of basic civics and the ability speak, read, and write ordinary 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, rather than 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 of 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 limitation on judicial review under IIRAIRA (Section 377) will not apply to applicants under these modifications 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 assistance. (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 that 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

Who Is Eligible for Relief: 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 as a result of the late legalization provisions of the LIFE Act.

  • Entered the United States before December 1, 1988 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 of 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 in order to obtain 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 (§212(a)(9)(A) and (C)).  

Protection from reinstatement of prior orders of deportation or removal: In applications for adjustment of status, for suspension of deportation, or for cancellation of removal as provided by NACARA or HRIFA, the Attorney General is prohibited from reinstating previous orders of removal or deportation in order to prevent those applications from being filed (§241(a)(5) shall not apply).

Availability of Motions to Reopen: NACARA and HRIFA applicants who become eligible to apply for adjustment of status, suspension of deportation, or cancellation of removal as a result of the changes contained in the LIFE Act will be able to file one Motion to Reopen any exclusion, deportation, or removal proceedings in order to apply for an adjustment of status under the Act. This right to file a Motion to Reopen exists notwithstanding any time and numerical limitations otherwise imposed under the Immigration and Nationality Act.
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