Since IIRIRA's introduction of "unlawful presence" and expedited removal, Immigration lawyers have been dealing with a various interpretations from INS.

Since IIRIRA’s introduction of “unlawful presence” and expedited removal, Immigration lawyers have been dealing with a various interpretations from INS.

Fortunately for those affected by or working in the field of Immigration Law, the past year has seen several changes for the better. As in the 1980s, Congressional action, as a reflection of public sentiment, has swung from creating harsh penalty-oriented laws back to an emphasis on family unification and fairness, which are two stated purposes of United States Immigration policy. Just a few years after Congress introduced the Illegal Immigration Reform and Immigrant Responsibility Act (“IIRIRA“) of 1996, the final days of the Clinton administration was marked by the American Competitiveness in the 21st Century Act (“AC 21”) and the Legal Immigration and Family Equity Act (“LIFE“) which laws made significant liberal changes to family and employment-based immigration rules. Now, while still awaiting important agency interpretations from the 1996 amendments, Immigration Lawyers must incorporate an entire new set of untested rules this year, promising to make 2001 a great odyssey!

Since IIRIRA’s introduction of such concepts as “unlawful presence,” expedited removal and the dreaded “ten year bar,” Immigration lawyers, the public and INS have been dealing with a patchwork of interpretations culled from INS Official Memoranda, Letters, and Advisory Opinions. These “new laws,” while passed nearly 5 years ago, are subject to new interpretations, as formal regulations have yet to be published.

The “3 and 10 year bar” from readmission for aliens following periods spent in the U.S. in excess of six months or one year in “unlawful presence” is a topic of enormous importance. The INS agrees that an I-94 indicating “D/S,” as is customary for most student visa holders, means that unlawful presence does not accrue until an Immigration Judge renders an order of removal, or INS denies an application for extension or change of status. Time spent in a period of “voluntary departure” or pursuant to a grant of parole is not unlawful presence. Time spent while awaiting a final decision on an application to remove conditions on residence, which is usually required in marriage-based cases after two years with the initial green card, is not a period of unauthorized stay, even if the INS denies the application. Such period of stay only becomes unauthorized after an Immigration Judge denies the renewed application and if an appeal fails.

With regard to changes and extensions of status, IIRIRA introduced a rule that calls for a tolling of the period of unlawful presence for up to 120 days. INS agrees that the period begins to run from the date of expiration on the original I-94, and not the date of filing the application for change or extension of status. Recognizing that the 120 day rule is completely unworkable, as INS may take up to 1 year to process a simple six month extension of tourist status, the Immigration Bar is pushing for reinterpretation allowing for the entire period during which an extension or change of status request is pending to be considered “lawful.” This, however, may require a legislative change.

There also was much discussion last year of who may benefit from an Immigrant petition filed prior to January 15, 1998 for the purposes of “grandfathering” under the old INA 245(i). Although INA 245(i) was repealed, and reinstated until April 30, 2001, certain individuals are still eligible for adjustment of status despite having overstayed or otherwise violated the terms of their nonimmigrant status if a Petition was “approvable when filed” prior to the deadlines, and even if they ultimately adjust status through a different visa petition.

INS agrees that a spouse and child of the principal beneficiary is also grandfathered by the pre-deadline petition. The spouse or child will continue to be grandfathered even if they subsequently lose that status; i.e. through divorce or reaching the age of 21, respectively. The spouse or child need only have attained that status as of the time of the principal’s adjustment of status in order to be grandfathered under INA 245(i).

Although much remains uncertain as to the future of “unlawful presence” and 245(i) issues, many positive developments have taken place in the interpretation of new laws. In the meantime, Congress took a step back from its ostensible anti-immigrant stance of 1996 and brought into being some very favorable immigration provisions last year.

In October 2000, the American Competitiveness in the 21st Century Act (“AC-21”) became law. AC-21 increases the number of H-1B visas available to 195,000 for the years 2001, 2002 and 2003. AC-21 exempts certain workers from the cap altogether. Persons to be employed on H-1B status for higher educational institutions, affiliated non-profit entities and individuals employed by Governmental and nonprofit research organizations are not counted against the cap. The INS is also not allowed under the law to count against the cap any person who has been in H-1B status within the previous six years.

One of the most important provisions of AC-21 is that it makes H-1B status “portable,” allowing for H-1B workers to transfer employers and begin working upon the filing of the new petition, without waiting several weeks for approval, as was previously the case. This provision, however, was effective only for petitions filed on or after October 17, 2000.

The “portability provision” further assists beneficiaries of labor certification applications and I-140 Petitions for Immigrant Worker whose applications for adjustment of status are pending in accepting new employment without penalty. If the I-485, adjustment of status application, has been pending more than 180 days, the worker may change jobs without losing the validity of the underlying I-140 or labor certification. Certain H-1B employees may also extend their H-1B status beyond the six year maximum if their immigrant employment Petition is pending for long periods also.

On December 21, 2000 President Clinton signed the Legal Immigration and Family Equity Act (“LIFE”) into law. LIFE extends the “grandfathering deadline” of Section 245(i) of the Immigration & Nationality Act (“INA”) until April 30, 2001. Section 245(i), which allowed many otherwise ineligible applicants for adjustment of status to apply for and receive green cards in the United States by paying a fine, lapsed on January 14, 1998. Applicants who failed to make the first deadline had a second opportunity to file an Immigrant Visa Petition or Labor Certification before April 30, 2001, and still be approved for green cards in the United States.

Congress initially enacted INA 245(i) in 1994, but with an expiration date of November 1997. The section allows people who entered without inspection, overstayed their visas, or otherwise fell out of lawful nonimmigrant status, to apply for their green cards in the United States upon the payment of a $1000.00 fine. The law was extended briefly amidst much controversy in late 1997, with a resulting compromise to “grandfather” individuals whose immigrant visa petitions or labor certifications were filed on or before January 14, 1998, allowing them to file for adjustment of status under INA Section 245(i) once their priority dates become current.

The main provision of LIFE extended the filing deadline of 245(i) applications until April 30, 2001. That means that applicants who were physically present in the U.S. on the date the new law was enacted and who had an immigrant visa petition or labor certification filed on their behalf prior to April 30, 2001, will be eligible to receive green cards in the United States when their priority dates become current. As with the previous “grandfathered petitions,” any person who is “grandfathered” under 245(i) may transfer eligibility later, if a faster avenue to the green card becomes available.

LIFE also created a temporary “V” visa for the spouses and minor children of green card holders, if the backlog for a green card is three years or more. Beneficiaries under the V Visa Program will not be subject to deportation, and will be granted work authorization. Also, the law created a separate K-3 visa category, allowing spouses of United States citizens and their children to come to the United States on an expedited basis like fiancées to file for adjustment of status in the United States after arrival, rather than waiting nearly a year for regular immigrant visa processing.

The sum total of these changes reflects a new attitude in the United States toward immigration and the benefits to the United States that new arrivals bring. In Immigration Law, however, change is frequent and often drastic, requiring that Immigration Lawyers pay the utmost attention to new developments and counsel their clients accordingly. On this great odyssey, there are many pitfalls and traps for the unwary, making it all- important that we choose our path well in 2001!