|
|
|
|
|
|
| ||||||
|
|
|
|
|
|
| FREE NEWSLETTER | |
|
This article discusses some of the new time- related bars to admissibility added by the Illegal Immigration Reform and Immigrant Responsibility Act of 1996 (IIRAIRA), and its relation to adjustment of status under INA section 245(i). Specifically, this advisory explores the three and ten-year bars set out in new section 212(a)(9)(B) of the Immigration and Nationality Act (INA).
THIS ARTICLE IS GENERALIZED AND IS NOT A SUBSTITUTE FOR INDIVIDUAL LEGAL ANALYSIS. It should not be regarded as legal advice.
THIS IS OUR BEST INFORMATION AT THIS TIME. The statute and other materials must be consulted for a fuller understanding of the topics discussed here. Moreover, the law is in flux and many questions are unanswered.
The article begins with very basic questions and answers and proceeds to more complicated topics.
A. Historically, in immigration law people who wanted to become lawful permanent residents (LPRs) had to obtain an immigrant visa ("green card") by going to a consulate outside the United States. This is called "consular processing" and is distinguished from adjustment of status (adjustment). Adjustment permits intending immigrants to remain in the United States and become lawful permanent residents without leaving.
Adjusting status within the United States does not confer any substantive benefits. The intending immigrant who wants to adjust must satisfy all the same requirements as someone who immigrates through consular processing. In fact, the adjustment applicant must satisfy additional requirements. Nevertheless, for many people, not having to depart the United States for an immigrant visa is a significant advantage.
Not everyone eligible for an immigrant visa can adjust status, however. Until section 245(i) became part of the INA in 1994, people who had entered the United States without inspection, for example, could not adjust status in the United States and had to consular process (see detailed discussion of section 245(i), below).
INA section 245(c) lists the categories of people who would be ineligible to adjust status but for section 245(i). These groups of people will be ineligible to adjust if section 245(i) is not renewed. These categories include:
People who entered without inspection (EWIs);
People who work without authorization (except
"immediate relatives" of United States citizens, INA
section 201(b));
People not in lawful immigration status when they
file for adjustment; and
People who did not maintain a lawful status
continuously since their entry.
A. Section 245(i) was added to the INA in 1994. It allows many people to adjust status who would not otherwise be able to do so. It does not waive or change any substantive requirements for immigrating. It simply enabled more people to adjust status in this country rather than having to consular process. For this benefit, Congress imposed a significant fee, recently increased to $1,000 per adjustment applications for applications filed on or after December 29, 1996. Section 376(a) of the IIRAIRA (there are some exemptions to the filing fees). See also, recently promulgated interim regulations pertaining to 245(i) fee, at 8 CFR 245.10(a)(6), 62 Fed. Reg. 39417-39425 (July 23, 1997).
Q. Why is section 245(i) even more important now?
A. Section 245(i) is even more important now because, as detailed below, the IIRAIRA imposed three and ten-year bars on admissibility for people who leave the United States. In other words, if people leave for consular processing, they may be barred from reentering for a long time. However, the bars do not apply if people adjust in the United States. Therefore, it is important that these people continue to be permitted to adjust status here, without having to depart.
Q. Is section 245(i) a temporary or permanent part of the INA?
A. Section 245(i) was a temporary part of the INA. It is set to expire, or sunset, on September 30, 1997. Efforts are under way in Congress, however, to extend or renew section 245(i) or to make it a permanent part of the INA.
Q. When will we know whether section 245(i) will be extended or renewed?
A. Congress will be in recess during August, so it is likely that we will not know definitely whether section 245(i) will be renewed or extended until Congress returns in September.
Q. What can I tell my clients about the chances of section 245(i) being renewed or extended?
A. Unfortunately, at this point you cannot tell them anything definite. No one knows for certain whether section 245(i) will be renewed or extended.
Q. What about the "pipeline" cases. That is, what if an application for adjustment under 245(i) is filed before the "sunset" date for 245(i), September 30, 1997, but has not been adjudicated by then?
A. The INS recently issued a new, interim regulation that says that any adjustment application filed pursuant to section 245(i) on or before September 30, 1997 may be processed. See interim regulation 8 CFR 245.10(c), 62 Fed.Reg. 39417-39425 (July 23, 1997).
Therefore, any application in the "pipeline" may be approved, even if section 245(i) is not renewed or extended.
A. There are many grounds of inadmissibility in the INA. That is, the statute specifies many reasons for which a person can be refused admission to the United States. Most of these are set out in section 212(a) of the INA.
To be granted an immigrant visa, whether through adjustment or consular processing, an intending immigrant must be admissible. This means he or she must not be barred by any provision of the INA.
The IIRAIRA added many new grounds of inadmissibility. Two new bars to admissibility are the "three-year" and "ten- year" bars.
Q. What is the "three-year bar?"
A. The "three-year bar" is found at new INA section 212(a)(9)(B)(i)(I). It says that a person who was "unlawfully present" in the United States for more than 180 days after April 1, 1997, who departed from the United States voluntarily, before removal proceedings began, and who then seeks admission to the United States is inadmissible for three years. There are exceptions and waivers, discussed below.
Q. Time in "unlawful presence" did not count until April 1, 1997?
A. Correct. No one’s "unlawful presence" counted until April 1, 1997, and 180 days from then is September 27, 1997. This is why that date is significant. After that day, people who were "unlawfully present", who depart voluntarily from the United States and who then seek readmission may be inadmissible for three years.
Q. What is the "ten-year bar"?
A. The "ten-year bar" is found at new INA section 212(a)(9)(B)(i)(II). It says that a person who was "unlawfully present" for one year or more and then departed is inadmissible for ten years. Again, some waivers and exceptions apply.
Q. Are separate periods of time in "unlawful presence" aggregated, that is, added together?
A. No. At least to date, the INS agrees with AILA that for both the three and ten-year bars, the period of unlawful presence must be consecutive. - June 17, 1997 Memorandum from Paul W. Virtue, Acting Executive Associate Commissioner of INS
For example, if your client accrued four months of unlawful presence on one visit to the United States and four months on a second visit, she did not accrue six consecutive months of unlawful presence, and thus would not be barred by the three-year bar.
Note, however, that the INS interprets a separate admissibility bar, in INA section 212(a)(9)(C), to be triggered by an aggregate of one year of unlawful presence.
Q. So if my client leaves the United States before she has accrued six months of unlawful presence she will "wipe the slate clean?"
A. Yes, but only for the three and ten-year bars. "Unlawful presence" time aggregates for the "permanent bar", section 212(a)(9)(C), so a departure would not erase any period of unlawful presence for that bar.
A. The statute defines "unlawful presence" as being "present in the United States after the expiration of the period of stay authorized by the Attorney General or [being] present in the United States without being admitted or paroled." INA section 212(a)(9)(B)(ii).
Although it might appear that this definition is easy to apply, the exact scope of "unlawful presence" and "period of stay authorized by the Attorney General" is a topic of current turmoil and debate. The INS is expected to issue a regulation with its interpretation of the phrase. AILA has urged the INS to adopt our interpretation. It remains to be seen whether the INS will adopt AILA’s suggestions, and whether the INS’s interpretation is challenged in the courts.
Q. What if my client violates the terms of her nonimmigrant visa. Is that "unlawful presence?"
A. This is a subject of great concern to AILA. The INS’s answer is not yet clear. The statute defines "unlawful presence" as being present "after the expiration of stay authorized by the Attorney General." AILA argues that this means only staying beyond the time permitted. It should not include violations of nonimmigrant visa status during the period of authorized stay.
A. No. The June 17 Virtue Memorandum adopts the position urged by AILA: that the time during which a "properly filed" application for adjustment under section 245(a) or 245(i) is pending is not "unlawful presence". See June 17 Virtue Memorandum.
That is, people who properly file adjustment applications will be considered to be present under a period of stay authorized by the Attorney General.
Although the Virtue Memorandum does not have the force of law, we are hopeful that the INS will adhere to this position when it publishes regulations defining "unlawful presence."
Q. What if the adjustment application is denied but my client asks the immigration judge to grant adjustment as a defense to removal in removal proceedings?
A. The June 17 Virtue Memorandum says that the INS will consider the renewal of a denied application in removal proceedings to be a period of authorized stay.
Arguably contradictorily, however, the June 17 Memorandum distinguishes an adjustment application filed for the first time in removal proceedings, after a notice to appear has been issued, from the renewal in removal proceedings of a denied adjustment application. The Memorandum says that the filing of an initial adjustment application in removal proceedings does not create a period of authorized stay. AILA questions this distinction. This article is adapted from a practice advisory was written by Nadine Wettstein, Esq. with help from AILA intern Gary Merson, and input from AILA and AILF staff and members.
Continue...
Schedule A Legal Consultation
Return to Text and Analysis of New Law
Return to Immigration Guide Homepage