The following practice advisory was provided by AILA member Dan Kowalski on the Nicaraguan and Central American Relief Act (NACARA) on December 1, 1997:
An INS Statement offered the following guidance: "The Department of Justice will be developing forms and procedures required for implementing this legislation during the next several months. In the interim, the INS will not deport any individual who may be eligible for benefits under this legislation. However, individuals who have certain convictions or are otherwise inadmissible will still be subject to deportation." (INS Statement, November 19, 1997)
Proving Continuous Physical Presence
The law cites several means by which continuous physical presence can be demonstrated. Any of the following can be offered as documentation to prove continuous physical presence since December 1, 1995: 1) an application for asylum; 2) the issuance of an order to show cause; 3) placement in exclusion proceedings; 4) an application for adjustment of status; 5) an application for employment authorization; 5) social security records evidencing that the individual was engaged in a trade or business; or, 6) the application for any benefit under the Immigration and Nationality Act (INA) that would demonstrate physical presence prior to December 5, 1995. The statute also permits the Attorney General to develop other criteria for demonstration of physical presence in the event that an individual does not fit within one of the seven enumerated categories.
Effect on Individuals in Proceedings
NACARA states that the Attorney General shall provide by regulation for the stay of any final order of deportation or removal of individuals filing for adjustment under the new law.
Employment Authorization
Employment authorization may be issued if an application for adjustment is pending for more than 180 days.
Inapplicability of Section 245(c) and Certain Exclusion Grounds
The statute states that section 245(c) of the INA shall not be applicable, nor will grounds of inadmissibility set forth in the following paragraphs of section 212(a):
- Section 212(a)(4) - public charge;
- Section 212(a)(5) - labor certification;
- Section 212(a)(6)(a) - present without being admitted or paroled;
- Section 212(a)(7)(a) - documentary requirements; and,
- Section 212(a)(9)(b) - individuals unlawfully present.
The exception for INA section 212(a)(9)(b) was not included in the original legislation that was enacted, but was contained in a technical corrections bill passed shortly thereafter.
Application Deadline
Applications must be filed before April 1, 2000.
Derivative Applications
The spouse, child, or unmarried son or daughter of an adjustment applicant may also apply for permanent residence. Unmarried sons and daughters must demonstrate that they have been continuously present in the United States since December 1, 1995, under essentially the same terms as the principal applicant.
No Judicial Review
No judicial review of denials of applications under these provisions will be permitted. Administrative review will still be provided.
Some individuals will now be able to apply for suspension of deportation under pre-IIRAIRA standards: 1) Salvadoran nationals who entered the United States on or before September 19, 1990, and who registered for benefits pursuant to the settlement in the ABC case on or before October 31, 1991, or temporary protected status on or before October 31, 1991; 2) Guatemalan nationals who entered the United States on or before October 1, 1990, and who registered for ABC benefits on or before December 31, 1991; 3) Guatemalans or Salvadorans who applied for asylum on or before April 1, 1990; 4) individuals who entered the United States before December 31, 1990, who filed an application for asylum on or before December 31, 1991, and were at the time of filing nationals of the Soviet Union, Russia, any Republic of the former Soviet Union, Estonia, Latvia, Lithuania, Poland, Czechoslovakia, Romania, Hungary, Bulgaria, Albania, East Germany, Yugoslavia, or any state of the former Yugoslavia.
INS advises that individuals with ABC asylum interviews plan on attending as scheduled. Individuals denied asylum will be permitted to apply for cancellation of removal. (November 19, 1997 Statement)
The Suspension Standards Generally
Individuals in the protected classes must show continuous physical presence in the United States for at least seven years, good moral character, and that their removal would cause extreme hardship to themselves, or to spouses, parents or children who are permanent residents or citizens.
Such individuals may not be inadmissible under INA sections 212(a)(2) - criminal grounds or 213(a)(3) - security grounds. Further they cannot be deportable under criminal grounds (237(a)(2)), security grounds(237(a)(3)), or grounds related to falsification of documents (237(a)(4)). Individuals involved in persecution or regarded as security risks are ineligible under this provision.
Individuals in the protected classes who are inadmissible under criminal grounds, except for aggravated felons, may be eligible for cancellation if they can demonstrate ten years of continuous physical presence immediately following the commission of an act (or the "assumption of a status, constituting a ground of removal"), good moral character during that period, and exceptional or extremely unusual hardship to themselves, or to spouses, parents or children who are permanent residents or citizens.
Many are advocating that extreme hardship should be presumed for protected class members, but INS has not yet indicated a position on this, and there could conceivably be congressional opposition to this.
Derivative Eligibility Spouses and children of eligible individuals who are also nationals of Nicaragua or Cuba will be regarded as eligible to adjust as derivatives. Adult sons and daughters may qualify if they entered the United States before October 1, 1990.
No Judicial Review
There will be no judicial review of decisions under these provisions. An appeal to the Board of Immigration Appeals, therefore, appears to be the last resort.
Motions to Reopen
An individual who becomes eligible for suspension or cancellation as a result of NACARA may file one motion to reopen to apply for cancellation/suspension regardless of any other statutory or regulatory limitations. The Attorney General will designate a period after enactment during which a person may file such a motion to reopen. The period must begin within 60 days of enactment, and may not exceed 240 days in length.
It is difficult to predict what impact the Attorney General's previous vacating of the N-J-B- decision will have on Service policy. The OCIJ directive does state, however, that unless and until the "Tefel v. Reno preliminary injunction issued by the United States District Court for the Southern District of Florida is vacated,Immigration Judges in the Courts affected by the Tefel injunction should maintain the status quo."
INS and EOIR officials have indicated that decisions reserved from FY97 will be regarded as decided in the fiscal year that a grant and an adjustment takes place, rather than the fiscal year that the case is reserved. Any case granted and adjusted from the reserved FY97 lot during FY98, therefore, will be regarded as coming out of an 8,000 FY98 allotment, rather than a 4,000 FY97 allotment. Reserved cases from FY97 should receive final decisions during FY98, but timing is uncertain.
Both INS and EOIR have stated that they are in the process of developing an "allotment system" to track and allocate numbers prior to outright granting any of the reserved cases. The OCIJ memo states that those cases not subject to the cap may be granted immediately. Cases subject to the cap must continue to be granted on a conditional basis.
It is interesting to note that in an explanatory memorandum read into the Congressional Record by Senator Connie Mack, it states that nothing (in NACARA) "is intended to prevent the Attorney General and those adjudicating suspension and cancellation applications on her behalf from pursuing the course that she has been following to this time of entering provisional grants "but postponing a final decision "until a slot becomes available." In no case is it Congress's intent that an otherwise meritorious application should be finally denied, and the applicant deported or removed, because the 4,000 limit has been reached." (Congressional Record, November 9, 1997, page S12267).
President Clinton in a November 14 White House Statement, and again when he signed the bill indicated concern about treating similarly situated people differently, and stated that this should be considered in the implementation process. The President also expressed concern about applying some of the harsh IIRAIRA provisions to individuals with pending cases. This seemed to directly address individuals disadvantaged by the codification of the N-J-B decision. Finally, the President indicated support for special relief for Hatiains.
November 26, 1997 Update Congress adjourned on Thursday, November 14, ending work on a number of bills which affect immigrants and their families. The bill concerning section 245(i) was signed by the President on November 26. Another bill which provides for amnesty for Cubans and Nicaraguans and relaxed rules for suspension of deportation for certain Central Americans and nationals of former Soviet-bloc countries was signed into law by the President on November 19.
245(i) TO SUNSET - Grandfathering will cover those with petitions filed by January 14, 1998
The appropriations bill which allocates spending for the Departments of State, Justice, and Commerce for Fiscal Year 1998 was passed just before Congress left town. At the same time, a short-term Continuing Resolution has also been passed, giving the President until November 26th to examine the bill.
The State/Justice/Commerce appropriations bill had been the battleground for those who sought to extend a provision of the Immigration Act known as Section 245(i). The provision allows immigrants who are here illegally, but who qualify for a permanent resident visa through family or employer sponsorship to adjust their status without leaving the country. In the bill as passed, Congress failed to permanently extend Section 245(i), meaning it will sunset on the date of enactment. However, a "grandfather" provision included in the bill excepts immigrants who have their petition filed as of January 14, 1998, from the sunsetting of 245(i). Immigrants who have been grandfathered will continue to be able to adjust their status under Section 245(i) without leaving the country.
Family-based immigrants in the pipeline: The first step in the immigration process for persons immigrating through family sponsorship is to have a relative--either a U.S. citizen or legal permenent resident--file a petition for the immigrant. Immigrants whose family members have filed a petition by January 14, 1998 will continue to be eligible to adjust under section 245(i). This adjustment may not actually take place for several years, because some categories of family immigration are severely backlogged. Along with the immigrant who is the primary beneficiary of the relative petition, the immigrant's spouse and children--the "derivative" beneficiaries--will also be able to adjust.
Employment-based immigrants in the pipeline: The first step in the employment-based immigration process for persons immigrating through employer sponsorship is to have the employer file a labor certification for the immigrant. By this document, the employer certifies with the Department of Labor that there is no domestic worker available for the job the employer intends to fill with the immigrant. Immigrants for whom labor certifications have been filed by January 14, 1998 will continue to be able to adjust to permanent residence without leaving the country. Derivative beneficiaries of these employment-based immigrants will also be able to adjust.
Protect a grandfathered individual from deportation, should the INS come across the individual in some enforcement action. As long as the immigrant continues to live in the U.S. illegally, he or she risks detection by the INS and possible deportation.
Protect a grandfathered individual from the three- and ten-year bars to reentry, should the individual leave the country (or be deported) and then attempt to reenter. The 1996 Immigration Act established tough new penalties on immigrants who live here illegally for more than 180 days, and even more severe penalties for those who are here illegally one year or more. These immigrants, if they leave the U.S., are barred from reentering the U.S. for three or ten years, respectively. Immigrants covered by the grandfathering compromise, because they are living out of status while waiting for their immigrant visa to come through, are subject to these penalties if they leave the country.
While at first glance this would appear to expand the class of persons who will be eligible for grandfathering, it is fraught with potential traps for those who may scramble for a way to legalize their status. We may see immigrants flocking to get married, as we did in some cities when people misunderstood the meaning of the April 1st effective date of the 1996 law.
It is imperative that those in immigrant communities understand that there are severe penalties for entering into fraudulent marriages, and ultimately this may lead to deportation.
On Thursday evening, November 13, both the Senate and the House of Representatives voted to approve and send to President Clinton the appropriations bill that contains the compromise on Section 245(i). As reported earlier, there will be no permanent extension. Instead, immigrants who are already in this country and who have a relative petition filed for them by January 14th, 1998, will continue to be able to adjust under 245(i). As of this writing, it is not clear whether the relationship must exist by the date of enactment.
For employment-based immigrants, the grandfathering agreement covers those whose employers submit labor certifications on their behalf by January 14, 1998. Employment-based immigrants who enter legally and fall out of status will be able to adjust under a separate provision of law if they have not been out of status for more than a total of 180 days.
Derivative beneficiaries are explicitly included in the grandfathering compromise, a clarification since the last time we reported on Congressional action.
There is a possibility that the bill will not be signed by the President for another 10-14 days. This will allow certain people, most notably winners of the DV-98 Visa Lottery extra time to file their 245(i) applications.
Also, both the Senate and the House have passed the District of Columbia appropriations bill and sent it to the President for signature. Included within this appropriations bill is the Act now called the "Nicaraguan Adjustment and Central American Relief Act" (formerly, the "Victims of Communism Relief Act").
In a previous update, we described who would be the beneficiaries of the act. As far as we know, there have been no changes. Work has already begun to ensure that, to the extent possible, there is parity of outcomes among the Central American beneficiaries of the legislation. That is, although the legislation treats similarly-situated Central Americans differently, there is an effort to see that, in the final outcome, Guatemalans and Salvadorans (as well as Eastern Europeans) all benefit to the greatest extent possible.
Senate, White House Lay Out Objectives
Senate report language and draft report language to accompany the bill make clear that the objective is a "parity of outcomes" between the eligible class members of Salvadorans, Guatemalans, and Eastern Europeans on the one hand and the Nicaraguans and Cubans who are provided with more generous treatment in the legislation. Senator Mack, the author of the legislation, made the point in a statement that it, "would be entirely consistent with Congressional intent ... that any future difficulties these people may experience in getting a final resolution of their status here be kept to a minimum." Specifically, Sen. Mack recommended that "the Attorney General not ... challenge applications for relief by Eligible Class Members on hardship grounds if the applicant satisfies the seven-year presence and good moral character requirements."
When the President signs the DC appropriations bill, he is expected, in a "signing statement," to register his disappointment that the legislation fails to treat similarly-situated nationals equally. He is expected to direct the Attorney General to take action to see that the eligible Salvadoran and Guatemalan class members are treated in a manner that results in parity. White House staff have indicated that legislative history, coupled with the President's statement, are aimed at an implementation scheme that will achieve as close to "100%" of parity as possible.
Congressman Lamar Smith, as his price for agreeing to this "compromise" obtained inclusion of statutory language in the law which would restore the discredited "NJB" decision, thereby disqualifying from suspension of deportation persons who were placed under deportation proceedings before accumulating seven years of continuous physical presence in the U.S. even though this occurred before the passage of 1996 immigration law.
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Update as of November 10, 1997 The House and Senate worked through the weekend on remaining appropriation bills that must be completed before members leave for the holiday season. The Senate took all of the remaining appropriations bills--State/Justice/Commerce; D.C.; and Foreign Operations--and bundled them into one bill. Over the weekend they passed this umbrella bill. The House has not acted on it, and the House has recessed until Novmeber 12 (Wednesday). Since work has not been completed on the appropriations bills, another Continuing Resolution has been passed, giving Congress until Monday (November 17) to complete its work.
Employment-based immigrants who temporarily overstay their visas will be able to adjust their status under a separate provision of law, if they had not been in the U.S. out of status for more than 180 days.
The other issue that is in play is "derivatives." That is, if a petition is filed for an immigrant spouse, it is not clear that her children would be covered by the petition, as is usually the case. If not, immigrants would be faced with being able to adjust, while their children would be forced to leave the country and thus subject to the three- or ten-year bars.
**Remaining Advocacy: The ball is now in the House's court, and advocates are pressuring appropriators to push the cutoff date to 180 days after the date of enactment, and to clarify that derivatives will be covered.
Advocates are urged to contact their member of Congress and urge him or her to weigh in with the appropriators to
** allow for a 180-day period for filing of petitions; and ** to make clear that derivatives are covered.Once the bill returns to the Senate (so that the Senate can modify or approve changes made by the House), the target for advocacy on the cutoff date will shift back to that body.
***NOTE: In anticipation of the possibility that that the cutoff date is "date of enactment," the INS has sent out a notice saying that, to accomodate last-minute filings, it will allow the filing of immigrant visa petitions and applications for Section 245(i) at any District Office or Service Center through the close of business Friday, November 14. See the INS statement that accompanies the faxed version of this update.
The Senate passed on Sunday night the appropriations bill for the District of Columbia (as part of a larger appropriations package). Attached to the bill was the act formerly known as the "Victims of Communism Relief Act." This is the bill agreed to several days ago by Representatives Diaz-Balart, Smith, Gingrich and Senators Abraham, Mack and Lott. The House of Representatives is expected to take the bill up this week and final passage should happen by Friday.
**Haitians Get Letter Of Support From Democrat and Republican Senators
In the final days leading up to the Senate passage of the bill, Senator Carol Moseley-Braun (D-IL) worked hard to have Haitians added to the legislation. Though she was not successful (the bill as passed out of the Senate does not include Haitians), she was able to make some progress in getting the plight of the Haitians on the radar screens of several Senators. Attached to the fax version of this update is a letter sent to the White House from Senators Bob Graham (D-FL), Ted Kennedy (D-MA), Carol Moseley-Braun, Connie Mack (R-FL), Spencer Abraham (R-MI), and Dick Durbin (D-IL), urging the White House to "ease the fears of deportation" faced by the Haitian community. The letter notes that legislation aimed at remedying the concerns of the Haitian population will be introduced in the final days of the Congressional session. On Sunday, Sen. Bob Graham introduced legislation that would give Haitians the same relief awarded to Nicaraguans and Cubans in the "Victims of Communism Relief Act." A companion House bill has not been introduced as of this writing.
**Salvadorans and Guatemalans Await White House Word on Suspension Process
The White House has indicated that it will make a statement at the time of the signing of the appropriations bill to point out the inequity in treatment between Nicaraguans and Guatemalans and Salvadorans. According to our sources, the statement will include a promise to direct the Attorney General to ensure that in the final outcome of the process, there is as close to equal treatment of the groups as possible. That is, the process will be such that Salvadorans and Guatemalans should easily be able to show that they meet the requirements for Suspension of Deportation. We will be working closely with the White House and the INS on the details of the followup, and we will keep you posted.
Immigrant advocates saw this as an opportunity to restore Food Stamp benefits to some legal immigrants and argued for the use of at least $200 to $300 million of the $1.2 billion to extend Food Stamp eligibility to refugees from five to seven years. This summer, when Congress extended Medicaid and SSI benefits to refugees for the same period, it neglected Food Stamps.
The House proceeded to pass its version of the bill, HR 2534, without any new spending on Food Stamps. However, there were encouraging signs from members of the conference committee that Food Stamps would be restored to some legal immigrants when it met to consolidate the two bills. The bill has been stalled from proceeding to conference over an unrelated issue. As a result, it will not proceed to conference committee until next session which begins in January, 1998.
This was just the first step in the battle yet to be fought to restore Food Stamps to legal immigrants. It was a critical step, in that it succeeded in raising the issue and showed that there is strong interest in the Congress to restore Food Stamps to legal immigrants.
The legislation now says that the DFS program will terminate seven days after the date of enactment (which now won't be until later this week, at the earliest). A previous version of the bill stipulated that law enforcement agencies could also take the fingerprints of naturalization applicants, but at the request of INS, that language has been removed. That is, seven days after the date of enactment, INS (through their single contractor) will be solely responsible for taking the fingerprints of naturalization applicants.
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