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 The Oh Law Firm and its Lawyers are not responsible for reliance by the reader on this information as each individual situation may be unique and different. The readers are advised to seek legal counsel from a qualified immigration attorney. The information stated here is subject to change.


I-485 & Consular Processing Resources

(For I-485 Related Ancillary Issues, Please Visit Ancillary 485 Page)

New I-485 Form: Click Here

List of Postings:

* INS 245(i) Regulation of March 26, 2001

* INS Memo on I-9 Misrepresentation and Removability

* AILA Summary Q&A on 245 (i) Extension Through 04/30/2001 (Courtesy of AILA)

* Q&A of V and K Visas under LIFE Act

* AILA Summary of LIFE Act (245(i), V, K, Visas, etc) (Courtesy of AILA)

* Full Text of LIFE Act

* TCN Ciudad Juarez IV Application Procedures

* New I-485 Forms and Instructions

* Child Citizenship Act of 2000 (INS Q & A)

* Certain Indochinese Special Immigration Opportunities

* DOS AC 21 Cable to the Posts

* INS Reading of AC 21 (S. 2045)

* Victims of Trafficking and Violence Prevention Act of 2000 and Summary

* Public Charge, Ineligibility for 485, and Public Charge Benefits Checklist

* INS Memo Disallowing Concurrent CP+485

* Matthew Oh, Esq. Reflects on S. 2045.

* TCN IV Processing Procedures (DOS)

* New I-485 Form

* Service Centers' EB-485 Filing Guidance

* Expired Visa and Nonimmigrants Travelling in Canada/Mexico or Adjacent Islands, pending 485


* INS Memo on I-9 Misrepresentation and Removability

S. Genco Opinion 92-39
Penalties for Misrepresentations on Form I-9

April 30, 1991
CO 212.13-C
CO 274A-C

LEGAL OPINION: Penalties for misrepresentations by an unauthorized alien on an Employment Eligibility Verification Form (Form I-9)

Paul Stultz, District Counsel, Omaha, NE
Office of the General Counsel

QUESTIONS

I. Whether an alien who misrepresents his or her citizenship or immigration status or presents counterfeit documents in completing INS Employment Eligibility Verification, Form I-9, is subject to exclusion from the United States under section 212(a)(19) of the Immigration and Nationality Act (Act). 1

SUMMARY CONCLUSION

Misrepresentations made to an employer in completing a Form I-9 are not statements made to a United States government official authorized to grant visas or other benefits under the Act and therefore cannot form the basis for the exclusion of an alien under section 212(a)(19) of the Act. The same holds true for presentation of counterfeit documents.

These actions, however do render an alien subject to criminal persecution. Also, the Immigration Act of 1990, Pub. L. No. 101-649, 104 Stat. 4978, provides for assessment of civil administrative penalties against persons or entities who fraudulently complete forms I-9 or who present or accept fraudulent documents in conjunction with Forms I-9. Beginning June 1, 1991, an alien subject to a final order assessing such a penalty is ineligible for adjustment of status and subject to exclusion.

ANALYSIS

A. An Alien's False Statement or Presentation of False Documents in Completing a Form I-9 Does Not Render the Alien Excludable under INA Section 212(a)(19)

Any alien "who, by fraud or willfully misrepresenting a material fact, seeks to procure, or has sought to procure or has procured a visa, other documentation, or entry into the United States or other benefit provided under this Act" is ineligible to receive a visa and shall be excluded from admission into the United States. INA 212(a)(19), 8 U.S.C. 1182 (a)(19) - To find an alien excludable under the provisions of section 212(a)(19) of the Act, an immigration judge must determine that : (1) there has been a misrepresentation made by the applicant; (2) the misrepresentation was willfully made, and (3) the fact misrepresented was material. In the Matter of M--, 6 I & N Dec. 149 (1954); Matter of L-L-, 9 I&N Dec. 324 (1961).

The terms "willful," "misrepresentation," and "material" are strictly defined for purposes of section 212(a)(19) of the Act. A misrepresentation is an assertion or manifestation not in accordance with the facts. Misrepresentations can be made in oral interviews, written applications, or by submitting evidence containing false information. For a misrepresentation to fall within the purview of section 212(a)(19) of the Act, however the alien must have made the misrepresentation before an official of the United States Government; generally speaking, a consular officer or an INS officer. Matter of L-L-, 9 I & N Dec. 324 (1961). Furthermore, a false statement of misrepresentation must be made to obtain some benefit under the INA in order for the false statement to render an alien excludable. FAM Note 7.2 to 2 CFR 40-7 (a)(19), TL:VISA-4 (November 19, 1987).

This inquiry concerns the use of the Employment Eligibility Verification Form (Form I-9), which is used in connection with the enforcement of section 274A of the Act. For two reasons, we render the alien subject to exclusion under section 212(a)(10) of the Act. First, an alien who falsifies a Form I-9 does not make the false statements before a United States government official authorized to grant visas or other immigration benefits.

Secondly, while the decision of the Service to grant an alien authority to accept employment is a benefit under the INA, an employee's decision to hire any particular individual involves a private employment contract. Thus, false statements on Form I-9 are not for the purpose of obtaining a benefit under the INA and, therefore, cannot form the basis for exclusion of an alien pursuant to section 212(a)(19) of the Act.

B. The Law Provides Sanctions, other than Exclusion under Section 212(a)(19) of the Act, for Aliens Who Make False Statements on Forms I-9

An alien's false statements in completing Form I-9 do not render him or her excludable from the United States under section 212(a)(19) of the Act. There are other sanctions, however, which the Service may seek to impose on aliens who falsify Forms I-9. A prospective employee attests to the accuracy of the information he or she provides on Form I-9 under penalty of perjury. The law provides that:

(b) Whoever uses--

(1) an identification document, knowing (or having reason to know) that the document was not issued lawfully for the use of the possessor,

(2) an identification document knowing (or having reason to know) that the document is false, or

(3) a false attestation, for the purpose of satisfying a requirement of section 274A(b) of the Immigration and Nationality Act, shall be fined in accordance with this title, or imprisoned not more than two years, or both.

18 U.S.C. 1546(b). Furthermore, an alien convicted under section 1546 is subject to deportation from the United States. INA 241(a)(3)(B)(ii), 8 U.S.C. 1251(a)(3)(B)(iii), as amended by Immigration Act of 1990 ("1990 Act"), Pub. L. No. 101-649, 602(a), 104 Stat. 4978, 5077, 5081 (1990).

The 1990 Act provides additional sanctions. Section 544(a) of the 1990 Act amends the Immigration and Nationality Act, as amended, by adding new section 274C . 1990 Act, 544(a), 104 Stat. at 5059. This new section 274C provides for civil administrative penalties against persons or entities engaging in immigration-related document fraud. INA 274C(d)(3), 8 U.S.C. 1324c(d)(3). The penalties are in effect for violations committed on or after November 29, 1990. 1990 Act, Pub. L. No. 101-649, 544(c), 104 Stat. at 5061.

New section 274C makes it unlawful for a person or entity knowingly to:

-- forge, counterfeit, alter or falsely make any document;

-- use, attempt to use, possess, obtain, accept or receive any forged, counterfeit, altered or falsely made document;

-- use or attempt to use any document lawfully issued to a person other than the possessor (including a deceased individual);

for the purpose of or in order to satisfy any requirement of the INA. INA 274C(a)(1) through (3), 8 U.S.C. 1324c(a)(1) through (3). It is also unlawful knowingly to accept or receive any document lawfully issued to a person other than the possessor (including a deceased individual) for the purpose of complying with section 274A(b) of the Act. Id. 274C(a)(4), 8 U.S.C. 1324c(a)(4). As noted above, employment, as contracted with employment authorization, is not a benefit under the INA. Attesting to one's citizenship or immigration status and presenting evidence of identity and employment authorization, however, are requirements of the INA. Id. 274A(b)(2), 8 U.S.C. 1324a(b)(2). Thus, civil penalties under section 274C may be assessed against those employees who falsely complete Forms I-9 fraudulent documents in connection with the Forms I-9. Id. 274C(a) and (d)(3), 6 U.S.C. 1324c(a) and (d)(3). The penalties include a monetary fine, as well as a "cease and desist" order. Id. The civil penalties are in addition to any criminal penalties imposed in Title 18, United States Code. Id. 274C(c), 8 U.S.C. 1324c(c)..

The 1990 Act imposes an additional sanction on alien violators of section 274C. Effective June 1, 1991, an alien subject to a final order under section 274C would also be ineligible for admission to the United States, and for adjustment of status. See id., 601(a) (amending INA 212(a)(6)(F) and (e) (establishing effective date), 104 Stat. at 5067, 5074 and 5077.

Congress had intended that aliens subject to final orders under section 274C of the Act be amenable to deportation. This intent is evident from the fact that section 544 of the 1990 Act also amended INA 241(a), 8 U.S.C. 1251(a), to provide for the arrest and deportation of an alien subject to a final order assessing a penalty for violation of section 274C. 1990 Act, Pub. L. No. 101-649, sec. 544(b), 104 Stat. at 5061. Section 602(a) of the 1990 Act, however, enacted a comprehensive revision of section 241(a). 1990 Act sec. 602(a), 104 Stat. at 5077. Section 602(a) of the 1990 Act, however, enacted a comprehensive revision of section 241(a). 1990 Act sec. 602(a), 104 Stat. at 5077. This revision of the deportation grounds became effective for deportation proceedings in which the orders to show cause are issued on or after March 1, 1991. Id. 602(d), 104 Stat. at 5082. The amended deportation statute does not carry over the deportation provision created by section 544(b). Id. 602(a), 104 Stat. at 5077. Thus, a technical correction bill may need to be enacted to ensure that the intent of Congress that aliens subject to final orders under 274C are amendable to deportation is given full legal effect.

An alien who knowingly competes Form I-9 falsely, or who offers fraudulent documents as proof of identify, employment authorization, or both, is subject to criminal and civil penalties. An alien who is convicted under 18 U.S.C. 1546 is also amenable to deportation. Beginning June 1, 1991, an alien subject to a final order imposing civil penalties under section 274C of the Act is ineligible for adjustment and subject to exclusion. Thus, although an alien does not become excludable under INA section 212(a)(19) by falsifying a Form I-9, the law does provide suitable sanctions which the Service may seek to impose for this conduct.

/s/

Paul W. Virtue
Acting General Counsel

--------------------------------------------------------------------------------

1. The text of the 1990 Act has two subsections 544(c). 104 Stat. at 5061. The effective date is in the second subsection 544(c).

(Courtesy of AILA)

 

* AILA Summary of 245(i) Extension Q&A. (Courtesy of AILA, as revised)

Disclaimer: This Q & A is for informational purposes only, and should not be considered legal advice. Neither AILA nor The Oh Law Firm will be responsible for reliance on this information.

New Section 245(i) provision of the Legal Immigration and Family Equity Act of 2000 (LIFE Act)

The new Section 245(i) allows certain eligible people to apply for (485) permanent residents without leaving the U.S. Eligible people have until April 30, 2001 to file an immigrant visa petition (an I-130, I-140, or I-360) with the INS or a labor certification application (ETA 750) with the DOL in order to take advantage of this new provision. IMPORTANT NOTE: The LIFE Act adds a new “physical presence” requirement: People who file a petition or labor certification after January 14, 1998 but before April 30, 2001 must prove that they were in the U.S. on December 21, 2000, the date this measure became law, in order to be eligible to use Section 245(i).

Filing a labor certification application or an immigrant visa petition is the first step in the process. Inasmuch as this first step is taken "timely,"even if a person did not file 485 until after April 30, 2001, if he/she is qualified, their eligibility will not expire.

Why is this new Section 245(i) needed?

Because Congress phased out the original Section 245(i) on January 14, 1998. (The original Section 245(i), authorized in 1994, allowed eligible people who were out of status to adjust their status in the U.S. upon payment of a fee of $1,000.) People who already qualified as of January 14, 1998 were “grandfathered” to receive the benefits of Section 245(i). However, many qualified people missed the January 14 deadline and others since have fallen out of status. The extension of Section 245(i) until April 30, 2001 provides a four-month window of opportunity for people to protect their ability to adjust their status in this country.

Who is eligible to qualify for 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 the new Section 245(i). Most people 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, are considered out of status and would be unable to complete the process to become a permanent resident in the U.S. without Section 245(i).

Three and ten year bars and 245(i)

Without Section 245(i), out of status people is unable to apply for 485 in the U.S. and must return to their home countries to apply for an immigrant visa at the U.S. consulate. However, if people have been out of status in the U.S. for more than 180 days, they would be barred from reentering the U.S. for at least 3 years, and perhaps as long as 10 years, no matter whether they are they are eligible for 245(i) benefits. Under Section 245(i), an eligible individual can remain in the U.S. to obtain permanent residence through adjustment of status. It is extremely important to remember that 245(i) is not relevant to the people's eligibility to return to the U.S., no matter whether they have filed I-1485 based on 245(i) benefits. If people depart from the U.S. voluntarlily after unlawful presence for over 180 days or 365 days, regardless of their pending I-485, they will be subject to the 3-year or 10-year bar no matter whether they have Advance Parole or not. Additionally, 245(i) does not convert one's legal status from illegal alien to legal alien in the U.S. until 485 application is filed. From the time of filing of 485 application is filed, running of unlawful presence in the U.S. for the purpose of 3-year or 10-year bar will tolled. Those who have accumulated unlawful presence for over 180 days or 365 days before filing 485 should not depart from the U.S. One more caution: Legally, until 485 application is filed, he/she remains an illega alien and can be arrested and subject to removal(deporation) proceeding. Thus, it is particularly important that people subject to the bars not leave the U.S. at all until they become permanent residents.

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, must prove that they were physically present in the United States on December 21, 2000. People can prove compliance by submitting evidence of physical presence in the U.S. This evidence could include any receipts for December 21 that include the beneficiary’s name.

How does a person take advantage of the new Section 245(i)?

To take advantage of the new Section 245(i), the first step is to file application or petition before 04/30/2001. In the Family-Based immigration proceedings, a relative must submit a visa petition to the INS (I-130) on behalf of the person seeking Section 245(i) benefits with the INS. The U.S. citizen or legal permanent resident who is sponsoring the Section 245(i) eligible person must file (and sign) the petition. In the Employment-Based immigration proceedings, an employer must submit either a labor certification to the DOL or immigrant petition (I-140) on behalf of the person seeking Section 245(i) relief, depending upon what immigrant preference catergory the employer takes. In certain cases such as National Interest Waiver EB-2 or Extraordinary Worker EB-11 cases, an alien can also file a self-petition. In all of these applications/petitons, it is extremely important for the people to remember that petitions or applications must be submitted on or before April 30, 2001. The INS or DOL does not have to approve the petition or application by that date. It just needs to be filed by April 30, 2001.

Legal permanent residents can petition for their spouses and unmarried sons and daughters (of any age). U.S. citizens can petition for their spouses, married and unmarried sons and daughters of any age, parents, and brothers and sisters.

It is important to know that battered immigrant spouses can submit petitions for themselves, as can applicants for national interest waivers.

Do people have to adjust status using the same category in which they petitioned?

No. It is important that people eligible to use Section 245(i) file their petitions and applications before April 30, 2001 using the eligibility they have at the time they file the petition. This initial filing preserves the ability to adjust! People can switch to another category when they become eligible for that category if that switch allows them, for example, to more quickly adjust their status.

What is the fee and when must it be paid?

The Section 245(i) fee is $1,000, and is in addition to any other filing fees the INS and DOL charge. In most cases, this fee does not have to be paid when relatives or employers submit the visa petition or labor certification on or before April 30, 2001. Rather, it is usually due later, when people adjust their status and become permanent residents. Thus, the $1,000 fee usually needs to be 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). Minor children under 14 years of age are exempted from this fee.

Does the new Section 245(i) grant work authorization, protection from deportation, or travel permission?

NO! Section 245(i) only allows people who illegally entered the United States or are out of status for various reasons to adjust their status in the U.S. if they are otherwise eligible. It offers no other protections or rights.

What can people do to make sure they take advantage of this new opportunity?

It is vitally important that people seeking Section 245(i) benefits seek advice from the people who can really help them: immigration lawyers and clinics with the expertise and knowledge to get the job done correctly. People who use notarios endanger themselves and their families and may end up, due to incorrect advice, being unable to use Section 245(i), out of luck and still out of status!

* Q&A of K and V Visas under LIFE Act

The New V Visa:

Who qualifies for the new V visa?

The V visa is available to the spouse and unmarried children under 21 of permanent residents. The applicant must have been waiting for permanent residence 3 years or more from the time the INS received a second preference petition filed on his or her behalf. The INS must have received the applicant’s petition on or before December 21, 2000. The INS need not have approved the petition.

What are the benefits of the V visa?

V visa holders can live and work in the United States while waiting to qualify for permanent residence. Prior to LIFE, these relatives of permanent residents often had difficulty getting a visa to visit the United States.

How does one get a V visa?

V visa applicants outside the United States will apply for their visa at a U.S. consulate abroad. The bars for applicants unlawfully present don’t apply. Applicants in the United States, even those here unlawfully, qualify to change status without returning home. We won’t know the exact procedures until the INS and Department of State issue instructions. Once the V visa holder has a relative petition approved on his or her behalf and a current priority date, he or she can adjust status under 245(a) or 245(i) if qualified. If the V visa holder can’t qualify for adjustment under the 245(a) or 245(i) rules, he or she may qualify under the new 245(m) which requires that the applicant have been physically present any time from July 1, 2000 to October 1, 2000. This will benefit the small number of people who were here during that period, but not here on December 21, 2000.

Is the V visa available to people who have been in undocumented status?

Yes. V visa applicants ARE NOT inadmissible for having been unlawfully present in the United States more than 180 days.

When can I apply for a V visa?

The law went into effect on the day of enactment, December 21, 2001. However, INS and DOS have not yet issued instructions and/or interim regulations and are not yet accepting applications.

The New K Visa Rules

Congress amended the K visa law to allow the spouse and unmarried minor children of a U.S. citizen to live and work in the United States while waiting to get residence. Unlike for V visa applicants, K visa applicants need not have filed by December 21, 2000 and need not have been waiting any particular amount of time. Prior to LIFE, the K visa was only available to the fiancé of a U.S. citizen and his or her children.

Who qualifies for the new K visa?

The K visa is available to the spouse of U.S. citizens and their unmarried children under age 21 who are outside the United States awaiting processing of their green card petitions. The K visa is available to future and current spouses and children. To qualify the applicant need only have a U.S. citizen spouse petition on his or her behalf.

How does the K visa help the children of the spouse of a U.S. citizen?

LIFE allows the unmarried children under 21 of the foreign spouse to accompany or follow their parent to the United States in K status. The children can work in the United States, and can adjust status to permanent residence.

The ability to adjust status is a big benefit for children 18 or older but under 21 who are not the natural children of the petitioning spouse. Under prior law, the 18-to-under-21 FIANCÉ children have been able to adjust if the fiancé married the U.S. citizen petitioner within 90 days of entry. But, a child 18-to-under-21 whose parent had already married a U.S. citizen faced a long wait to get permanent residence. Prior to LIFE, the non-citizen parent of these children had to petition for these children after the parent got permanent residence or U.S. citizenship. Due to processing and quota backlogs, the process often meant a wait for permanent residence of six years or more. Now, unmarried children 18-to-under-21 who accompany or follow a parent to the United States on a K visa can adjust status after entry in their own derivative K-3 status.

What are the benefits of the K visa?

Hopefully the INS and U.S. consuls will process K visas more quickly than immigrant visas, speeding up the uniting of spouses and children with the U.S. citizen petitioner. K fiancé visas often, but not always, process a couple of months faster than immigrant visas. Another benefit is the ability of unmarried minor children over 18 but under 21 to accompany a parent to the United States. Under current law such children would need to wait years for approval of a visa.

Is the K visa available to people who have been in undocumented status?

Undocumented immigrants would have to apply at a U.S. consul abroad. If the applicant were inadmissible on any grounds, he or she would require a waiver under section INA 212(d)(3)(A) AND a finding that the applicant would be eligible for a waiver at the adjustment of status interview. The unlawful presence bars apply. For an applicant facing inadmissibility charges, the risk of applying at a consul is great.

How does one get a K visa?

K visa processing for the spouse and children of a U.S. citizen should be similar to current K visa rules for fiancés. If the petitioner is in the United States, he or she will file here and the notice of approval will be forwarded to a U.S. consul abroad. Where the marriage has taken place abroad, LIFE requires that the K visa applicant apply for the visa in the country where the marriage occurred.

When can I apply for a K visa?

The K visa law NOW is in effect, but neither INS nor DOS have issued any rules so are not yet accepting petitions.

(Courtesy of AILA)

* LIFE Act Summary (courtesy of AILA)

Legal Immigration and Family Equity Act (LIFE Act)

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

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

************************************

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 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 becomes law.

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.

Must have a valid non-immigrant visa at the time that the K visa is issued. Where the marriage to the U.S. citizen occurred outside of the United, the K visa recipient must have a valid non-immigrant visa issue by the consulate where the marriage occurred.

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

* LIFE Act Full Text


SEC. 1101. SHORT TITLE.
This title may be cited as--(1) the `Legal Immigration Family Equity Act'; or (2) the `LIFE Act'.

SEC. 1102. NONIMMIGRANT STATUS FOR SPOUSES AND CHILDREN OF PERMANENT RESIDENTS AWAITING THE AVAILABILITY OF AN IMMIGRANT VISA; PROVISIONS AFFECTING SUBSEQUENT ADJUSTMENT OF STATUS FOR SUCH NONIMMIGRANTS.

(a) IN GENERAL- Section 101(a)(15) of the Immigration and Nationality Act (8 U.S.C. 1101(a)(15)) is amended--

(1) in subparagraph (T), by striking `or' at the end;
(2) in subparagraph (U), by striking the period at the end and inserting `; or'; and
(3) by adding at the end the following:

`(V) subject to section 214(o), an alien who is the beneficiary (including a child of the principal alien, if eligible to receive a visa under section 203(d)) of a petition to accord a status under section 203(a)(2)(A) that was filed with the Attorney General under section 204 on or before the date of the enactment of the Legal Immigration Family Equity Act, if--
`(i) such petition has been pending for 3 years or more; or
`(ii) such petition has been approved, 3 years or more have elapsed since such filing date, and--
`(I) an immigrant visa is not immediately available to the alien because of a waiting list of applicants for visas under section 203(a)(2)(A); or
`(II) the alien's application for an immigrant visa, or the alien's application for adjustment of status under section 245, pursuant to the approval of such petition, remains pending.

(b) PROVISIONS AFFECTING NONIMMIGRANT STATUS- Section 214 of the Immigration and Nationality Act (8 U.S.C. 1184) is amended by adding at the end the following:

`(o)(1) In the case of a nonimmigrant described in section 101(a)(15)(V)--
`(A) the Attorney General shall authorize the alien to engage in employment in the United States during the period of authorized admission and shall provide the alien with an `employment authorized' endorsement or other appropriate document signifying authorization of employment; and
`(B) the period of authorized admission as such a nonimmigrant shall terminate 30 days after the date on which any of the following is denied:
`(i) The petition filed under section 204 to accord the alien a status under section 203(a)(2)(A) (or, in the case of a child granted nonimmigrant status based on eligibility to receive a visa under section 203(d), the petition filed to accord the child's parent a status under section 203(a)(2)(A)).
`(ii) The alien's application for an immigrant visa pursuant to the approval of such petition.
`(iii) The alien's application for adjustment of status under section 245 pursuant to the approval of such petition.
`(2) In determining whether an alien is eligible to be admitted to the United States as a nonimmigrant under section 101(a)(15)(V), the grounds for inadmissibility specified in section 212(a)(9)(B) shall not apply.
`(3) The status of an alien physically present in the United States may be adjusted by the Attorney General, in the discretion of the Attorney General and under such regulations as the Attorney General may prescribe, to that of a nonimmigrant under section 101(a)(15)(V), if the alien--
`(A) applies for such adjustment;
`(B) satisfies the requirements of such section; and
`(C) is eligible to be admitted to the United States, except in determining such admissibility, the grounds for inadmissibility specified in paragraphs (6)(A), (7), and (9)(B) of section 212(a) shall not apply.'.

(c) PROVISIONS AFFECTING PERMANENT RESIDENT STATUS- Section 245 of the Immigration and Nationality Act (8 U.S.C. 1255) is amended by adding at the end the following:

`(m)(1) The status of a nonimmigrant described in section 101(a)(15)(V) who the Attorney General determines was physically present in the United States at any time during the period beginning on July 1, 2000, and ending on October 1, 2000, may be adjusted by the Attorney General, in the discretion of the Attorney General and under such regulations as the Attorney General may prescribe, to that of an alien lawfully admitted for permanent residence, if--
`(A) the alien makes an application for such adjustment;
`(B) the alien is eligible to receive an immigrant visa and is admissible to the United States for permanent residence, except in determining such admissibility, the grounds for inadmissibility specified in paragraphs
(6)(A), (7), and (9)(B) of section 212(a) shall not apply; and
`(C) an immigrant visa is immediately available to the alien at the time the alien's application is filed.
`(2) Paragraph (1) shall not apply to an alien who has failed (other than through no fault of the alien or for technical reasons) to maintain continuously a lawful status since obtaining the status of a nonimmigrant described in section 101(a)(15)(V).
`(3) Upon the approval of an application for adjustment made under paragraph (1), the Attorney General shall record the alien's lawful admission for permanent residence as of the date the order of the Attorney General approving the application for the adjustment of status is made, and the Secretary of State shall reduce by one the number of the preference visas authorized to be issued under sections 202 and 203 within the class to which the alien is chargeable for the fiscal year then current.
`(4) The Attorney General may accept an application for adjustment made under paragraph (1) only if the alien remits with such application a sum equalling $1,000, except that such sum shall not be required from an alien if it would not be required from the alien if the alien were applying under subsection (i).
`(5) The sum specified in paragraph (4) shall be in addition to the fee normally required for the processing of an application under this section.
`(6)(A) The portion of each application fee (not to exceed $200) that the Attorney General determines is required to process an application under this subsection shall be disposed of by the Attorney General as provided in subsections (m), (n), and (o) of section 286.
`(B) One-half of any remaining portion of such fee shall be deposited by the Attorney General into the Immigration Examination Fee Account established under section 286(m), and one-half of any remaining portion of such fees shall be deposited by the Attorney General into the Breached Bond/Detention Fund established under section 286(r).
`(7) Nothing in this subsection shall be construed as precluding a nonimmigrant described in section 101(a)(15)(V) who is eligible for adjustment of status under subsection (a) from applying for and obtaining adjustment under such subsection. In the case of such an application, the alien shall be required to remit only the fee normally required for the processing of an application under subsection (a).'.

(d) CONFORMING AMENDMENTS-

(1) ADMISSION OF NONIMMIGRANTS- Section 214 of the Immigration and Nationality Act (8 U.S.C. 1184) is amended, in each of subsections (b) and (h), by striking `(H)(i) or (L)' and inserting `(H)(i), (L), or (V)'.
(2) ADJUSTMENT OF STATUS- Section 245 of the Immigration and Nationality Act (8 U.S.C. 1255) is amended--
(A) in each of subsections (d) and (f), by striking `under subsection (a),' each place such term appears and inserting `under subsection (a) or (m),'; and
(B) in subsection (e)(1), by striking `subsection (a).' and inserting `subsection (a) or (m).'.

(e) EFFECTIVE DATE- The amendments made by this section shall take effect on the date of the enactment of this Act and shall apply to an alien who is the beneficiary of a classification petition filed under section 204 of the Immigration and Nationality Act on or before the date of the enactment of this Act.

SEC. 1103. NONIMMIGRANT STATUS FOR SPOUSES AND CHILDREN OF CITIZENS AWAITING THE AVAILABILITY OF AN IMMIGRANT VISA.

(a) IN GENERAL- Section 101(a)(15)(K) of the Immigration and Nationality Act (8 U.S.C. 1101(a)(15)(K)) is amended to read as follows:

`(K) subject to subsections (d) and (p) of section 214, an alien who-- `(i) is the fiancee or fiance of a citizen of the United States and who seeks to enter the United States solely to conclude a valid marriage with the petitioner within ninety days after admission;
`(ii) has concluded a valid marriage with a citizen of the United States who is the petitioner, is the beneficiary of a petition to accord a status under section 201(b)(2)(A)(i) that was filed under section 204 by the petitioner, and seeks to enter the United States to await the approval of such petition and the availability to the alien of an immigrant visa; or
`(iii) is the minor child of an alien described in clause (i) or (ii) and is accompanying, or following to join, the alien;'.

(b) PROVISIONS AFFECTING NONIMMIGRANT STATUS

Section 214 of the Immigration and Nationality Act (8 U.S.C. 1184), as amended by section 2 of this Act, is further amended by adding at the end the following:

`(p)(1) A visa shall not be issued under the provisions of section 101(a)(15)(K)(ii) until the consular officer has received a petition filed in the United States by the spouse of the applying alien and approved by the Attorney General. The petition shall be in such form and contain such information as the Attorney General shall, by regulation, prescribe.
`(2) In the case of an alien seeking admission under section 101(a)(15)(K)(ii) who concluded a marriage with a citizen of the United States outside the United States, the alien shall be considered inadmissible under section 212(a)(7)(B) if the alien is not at the time of application for admission in possession of a valid nonimmigrant visa issued by a consular officer in the foreign state in which the marriage was concluded.
`(3) In the case of a nonimmigrant described in section 101(a)(15)(K)(ii), and any child of such a nonimmigrant who was admitted as accompanying, or following to join, such a nonimmigrant, the period of authorized admission shall terminate 30 days after the date on which any of the following is denied:
`(A) The petition filed under section 204 to accord the principal alien status under section 201(b)(2)(A)(i).
`(B) The principal alien's application for an immigrant visa pursuant to the approval of such petition.
`(C) The principal alien's application for adjustment of status under section 245 pursuant to the approval of such petition.'.

(c) CONFORMING AMENDMENTS-

(1) ADMISSION OF NONIMMIGRANTS- Section 214(d) of the Immigration and Nationality Act (8 U.S.C. 1184(d)) is amended by striking `101(a)(15)(K)' and inserting `101(a)(15)(K)(i)'.
(2) CONDITIONAL PERMANENT RESIDENT STATUS- Section 216 of the Immigration and Nationality Act (8 U.S.C. 1186a) is amended, in each of subsections (b)(1)(B) and (d)(1)(A)(ii), by striking `214(d)' and inserting `subsection (d) or (p) of section 214'.
(3) ADJUSTMENT OF STATUS- Section 245 of the Immigration and Nationality Act (8 U.S.C. 1255) is amended--
(A) in subsection (d), by striking `(relating to an alien fiancee or fiance or the minor child of such alien)'; and
(B) in subsection (e)(3), by striking `214(d)' and inserting `subsection (d) or (p) of section 214'.

(d) EFFECTIVE DATE- The amendments made by this section shall take effect on the date of the enactment of this Act and shall apply to an alien who is the beneficiary of a classification petition filed under section 204 of the Immigration and Nationality Act before, on, or after the date of the enactment of this Act.

SEC. 1104. ADJUSTMENT OF STATUS OF CERTAIN CLASS ACTION PARTICIPANTS WHO ENTERED BEFORE JANUARY 1, 1982, TO THAT OF PERSON ADMITTED FOR LAWFUL RESIDENCE.

(a) IN GENERAL- In the case of an eligible alien described in subsection (b), the provisions of section 245A of the Immigration and Nationality Act (8 U.S.C. 1255a), as modified by subsection (c), shall apply to the alien.

(b) ELIGIBLE ALIENS DESCRIBED- An alien is an eligible alien described in this subsection if, before October 1, 2000, the alien filed with the Attorney General a written claim for class membership, with or without a filing fee, pursuant to a court order issued in the case of--

(1) Catholic Social Services, Inc. v. Meese, vacated sub nom. Reno v. Catholic Social Services, Inc., 509 U.S. 43 (1993); or
(2) League of United Latin American Citizens v. INS, vacated sub nom. Reno v. Catholic Social Services, Inc., 509 U.S. 43 (1993).

(c) MODIFICATIONS TO PROVISIONS GOVERNING ADJUSTMENT OF STATUS- The modifications to section 245A of the Immigration and Nationality Act that apply to an eligible alien described in subsection (b) of this section are the following:

(1) TEMPORARY RESIDENT STATUS- Subsection (a) of such section 245A shall not apply.
(2) ADJUSTMENT TO PERMANENT RESIDENT STATUS- In lieu of paragraphs (1) and (2) of subsection (b) of such section 245A, the Attorney General shall be required to adjust the status of an eligible alien described in subsection (b) of this section to that of an alien lawfully admitted for permanent residence if the alien meets the following requirements:
(A) APPLICATION PERIOD- The alien must file with the Attorney General an application for such adjustment during the 12- month period beginning on the date on which the Attorney General issues final regulations to implement this section.
(B) CONTINUOUS UNLAWFUL RESIDENCE-
(i) IN GENERAL- The alien must establish that the alien entered the United States before January 1, 1982, and that he or she has resided continuously in the United States in an unlawful status since such date and through May 4, 1988. In determining whether an alien maintained continuous unlawful residence in the United States for purposes of this subparagraph, the regulations prescribed by the Attorney General under section 245A(g) of the Immigration and Nationality Act that were most recently in effect before the date of the enactment of this Act shall apply.
(ii) NONIMMIGRANTS- In the case of an alien who entered the United States as a nonimmigrant before January 1, 1982, the alien must establish that the alien's period of authorized stay as a nonimmigrant expired before such date through the passage of time or the alien's unlawful status was known to the Government as of such date.
(iii) EXCHANGE VISITORS- If the alien was at any time a nonimmigrant exchange alien (as defined in section 101(a)(15)(J) of the Immigration and Nationality Act (8 U.S.C. 1101(a)(15)(J)), the alien must establish that the alien was not subject to the two-year foreign residence requirement of section 212(e) of such Act or has fulfilled that requirement or received a waiver thereof.
(iv) CUBAN AND HAITIAN ENTRANTS- For purposes of this section, an alien in the status of a Cuban and Haitian entrant described in paragraph (1) or (2)(A) of section 501(e) of Public Law 96-422 shall be considered to have entered the United States and to be in an unlawful status in the United States.
(C) CONTINUOUS PHYSICAL PRESENCE-
(i) IN GENERAL- The alien must establish that the alien was continuously physically present in the United States during the period beginning on November 6, 1986, and ending on May 4, 1988, except that--
(I) an alien shall not be considered to have failed to maintain continuous physical presence in the United States for purposes of this subparagraph by virtue of brief, casual, and innocent absences from the United States; and
(II) brief, casual, and innocent absences from the United States shall not be limited to absences with advance parole.
(ii) ADMISSIONS- Nothing in this section shall be construed as authorizing an alien to apply for admission to, or to be admitted to, the United States in order to apply for adjustment of status under this section or section 245A of the Immigration and Nationality Act.
(D) ADMISSIBLE AS IMMIGRANT- The alien must establish that the alien--
(i) is admissible to the United States as an immigrant, except as otherwise provided under section 245A(d)(2) of the Immigration and Nationality Act;
(ii) has not been convicted of any felony or of three or more misdemeanors committed in the United States;
(iii) has not assisted in the persecution of any person or persons on account of race, religion, nationality, membership in a particular social group, or political opinion; and
(iv) is registered or registering under the Military Selective Service Act, if the alien is required to be so registered under that Act.
(E) BASIC CITIZENSHIP SKILLS-
(i) IN GENERAL- The alien must demonstrate that the alien either--
(I) meets the requirements of section 312(a) of the Immigration and Nationality Act (8 U.S.C. 1423(a)) (relating to minimal understanding of ordinary English and a knowledge and understanding of the history and government of the United States); or (II) is satisfactorily pursuing a course of study (recognized by the Attorney General) to achieve such an understanding of English and such a knowledge and understanding of the history and government of the United States.
(ii) EXCEPTION FOR ELDERLY OR DEVELOPMENTALLY DISABLED INDIVIDUALS- The Attorney General may, in the discretion of the Attorney General, waive all or part of the requirements of clause (i) in the case of an alien who is 65 years of age or older or who is developmentally disabled.
(iii) RELATION TO NATURALIZATION EXAMINATION- In accordance with regulations of the Attorney General, an alien who has demonstrated under clause (i)(I) that the alien meets the requirements of section 312(a) of the Immigration and Nationality Act may be considered to have satisfied the requirements of that section for purposes of becoming naturalized as a citizen of the United States under title III of such Act.
(3) TEMPORARY STAY OF REMOVAL, AUTHORIZED TRAVEL, AND EMPLOYMENT DURING PENDENCY OF APPLICATION-
In lieu of subsections (b)(3) and (e)(2) of such section 245A, the Attorney General shall provide that, in the case of an eligible alien described in subsection (b) of this section who presents a prima facie application for adjustment of status to that of an alien lawfully admitted for permanent residence under such section 245A during the application period described in paragraph (2)(A), until a final determination on the application has been made--
(A) the alien may not be deported or removed from the United States;
(B) the Attorney General shall, in accordance with regulations, permit the alien to return to the United States after such brief and casual trips abroad as reflect an intention on the part of the alien to adjust to lawful permanent resident status and after brief temporary trips abroad occasioned by a family obligation involving an occurrence such as the illness or death of a close relative or other family need; and
(C) the Attorney General shall grant the alien authorization to engage in employment in the United States and provide to that alien an `employment authorized' endorsement or other appropriate work permit.
(4) APPLICATIONS- Paragraphs (1) through (4) of subsection (c) of such section 245A shall not apply.
(5) CONFIDENTIALITY OF INFORMATION- Subsection (c)(5) of such section 245A shall apply to information furnished by an eligible alien described in subsection (b) pursuant to any application filed under such section 245A or this section, except that the Attorney General (and other officials and employees of the Department of Justice and any bureau or agency thereof) may use such information for purposes of rescinding, pursuant to section 246(a) of the Immigration and Nationality Act (8 U.S.C. 1256(a)), any adjustment of status obtained by the alien.
(6) USE OF FEES FOR IMMIGRATION-RELATED UNFAIR EMPLOYMENT PRACTICES- Notwithstanding subsection (c)(7)(C) of such section 245A, no application fee paid to the Attorney General pursuant to this section by an eligible alien described in subsection (b) of this section shall be available in any fiscal year for the purpose described in such subsection (c)(7)(C).
(7) TEMPORARY STAY OF REMOVAL AND WORK AUTHORIZATION FOR CERTAIN APPLICANTS BEFORE APPLICATION PERIOD-
In lieu of subsection (e)(1) of such section 245A, the Attorney General shall provide that in the case of an eligible alien described in subsection (b) of this section who is apprehended before the beginning of the application period described in paragraph (2)(A) and who can establish a prima facie case of eligibility to have his status adjusted under such section 245A pursuant to this section (but for the fact that he may not apply for such adjustment until the beginning of such period), until the alien has had the opportunity during the first 30 days of the application period to complete the filing of an application for adjustment, the alien--
(A) may not be deported or removed from the United States; and
(B) shall be granted authorization to engage in employment in the United States and be provided an `employment authorized' endorsement or other appropriate work permit.
(8) JURISDICTION OF COURTS- Effective as of November 6, 1986, subsection (f)(4)(C) of such section 245A shall not apply to an eligible alien described in subsection (b) of this section.
(9) PUBLIC WELFARE ASSISTANCE- Subsection (h) of such section 245A shall not apply.

(d) APPLICATIONS FROM ABROAD- The Attorney General shall establish a process under which an alien who has become eligible to apply for adjustment of status to that of an alien lawfully admitted for permanent residence as a result of the enactment of this section and who is not physically present in the United States may apply for such adjustment from abroad.

(e) DEADLINE FOR REGULATIONS- The Attorney General shall issue regulations to implement this section not later than 120 days after the date of the enactment of this Act.

(f) ADMINISTRATIVE AND JUDICIAL REVIEW-The provisions of subparagraphs (A) and (B) of section 245A(f)(4) of the Immigration and Nationality Act (8 U.S.C. 1255a(f)(4)) shall apply to administrative or judicial review of a determination under this section or of a determination respecting an application for adjustment of status under section 245A of the Immigration and Nationality Act filed pursuant to this section.

(g) DEFINITION- For purposes of this section, the term `such section 245A' means section 245A of the Immigration and Nationality Act (8 U.S.C. 1255a).

TITLE XV--LIFE ACT AMENDMENTS (Title XV, Division B, H.R. 5666, Miscellaneous Appropriations of 2001, enacted by reference in H.R. 4577) – H.Rept. 106-1033

SEC. 1501. SHORT TITLE.

This title may be cited as the ``LIFE Act Amendments of 2000''.

SEC. 1502. SUBSTITUTION OF ALTERNATIVE ADJUSTMENT PROVISION.

(a) EXTENDED APPLICATION OF SECTION 245(i).--

(1) IN GENERAL.--Paragraph (1) of section 245(i) of the Immigration and Nationality Act (8 U.S.C. 1255(i)) is amended--
(A) in subparagraph (A), by striking ``and'' at the end;
(B) in subparagraph (B)(i), by striking ``January 14, 1998'' and inserting ``April 30, 2001'';
(C) in subparagraph (B), by adding ``and'' at the end; and
(D) by inserting after subparagraph (B) the following new subparagraph:
``(C) who, in the case of a beneficiary of a petition for classification, or an application for labor certification, described in subparagraph (B) that was filed after January 14, 1998, is physically present in the United States on the date of the enactment of the LIFE Act Amendments of 2000;''.
(2) MODIFICATION IN USE OF FUNDS.--Paragraph (3)(B) of such section is amended by inserting before the period the following: ``, except that in the case of fees attributable to applications for a beneficiary with respect to whom a petition for classification, or an application for labor certification, described in paragraph (1)(B) was filed after January 14, 1998, one-half of such remaining portion shall be deposited by the Attorney General into the Immigration Examinations Fee Account established under section 286(m)''.

(b) CONFORMING AMENDMENTS.--

(1) Subsection (m) of section 245 of the Immigration and Nationality Act, as added by section 1102(c) of the Legal Immigration Family Equity Act, is repealed.
(2) Section 245 of the Immigration and Nationality Act, as amended by section 1102(d)(2) of the Legal Immigration Family Equity Act, is amended by striking ``or (m)'' each place it appears.

SEC. 1503. MODIFICATION OF SECTION 1104 ADJUSTMENT PROVISIONS.

(a) INCLUSION OF ADDITIONAL CLASS.--Section 1104(b) of the Legal Immigration Family Equity Act is amended--

(1) in paragraph (1), by striking ``or'' at the end;
(2) in paragraph (2), by striking the period at the end and inserting ``; or''; and
(3) by adding at the end the following new paragraph:
``(3) Zambrano v. INS, vacated sub nom. Immigration and Naturalization Service v. Zambrano, 509 U.S. 918 (1993).''.

(b) CONFORMING APPLICATION OF CONSENT PROVISION.--

Section 1104(c) of the Legal Immigration Family Equity Act is amended by adding at the end the following new paragraph:
``(10) CONFORMING APPLICATION OF CONSENT PROVISION.--In addition to the waivers provided in subsection (d)(2) of such section 245A of the Immigration and Nationality Act, the Attorney General may grant the alien a waiver of the grounds of inadmissibility under subparagraphs (A) and (C) of section 212(a)(9) of such Act (8 U.S.C. 1182(a)(9)). In granting such waivers, the Attorney General shall use standards used in granting consent under subparagraphs (A)(iii) and (C)(ii) of such section.''.

(c) INAPPLICABILITY OF REMOVAL ORDER REINSTATEMENT.--Section 1104 of such Act is further amended--
(1) by redesignating subsection (g) as subsection (h); and
(2) by inserting after subsection (f) the following new subsection: ``(g) INAPPLICABILITY OF REMOVAL ORDER REINSTATEMENT.--
Section 241(a)(5) of the Immigration and Nationality Act shall not apply with respect to an alien who is applying for adjusmtent of status under this section.''.

SEC. 1504. APPLICATION OF FAMILY UNITY PROVISIONS TO SPOUSES AND UNMARRIED CHILDREN OF CERTAIN LIFE ACT BENEFICIARIES.

(a) IMMIGRATION BENEFITS.--Except as provided in subsection (d), in the case of an eligible spouse or child (as described in subsection (b)), the Attorney General--
(1) shall not remove the alien on a ground specified in paragraph (1)(A), (1)(B), (1)(C), or (3)(A) of section 237(a) of the Immigration and Nationality Act (8 U.S.C. 1227(a)), other than so much of paragraph (1)(A) of such section as relates to a groundof inadmissibility described in paragraph (2) or (3) of section 212(a) of such Act (8 U.S.C. 1182(a)); and
(2) shall authorize the alien to engage in employment in the United States during the period of time in which protection is provided under paragraph (1) and shall provide the alien with an ``employment authorized'' endorsement or [Page: H12300] GPO's PDF other appropriate document signifying authorization of employment.

(b) ELIGIBLE SPOUSES AND CHILDREN.--For purposes of this section, the term ``eligible spouse or child'' means an alien who is the spouse or unmarried child of an alien described in section 1104(b) of the Legal Immigration Family Equity Act if the spouse or child--
(1) entered the United States before December 1, 1988; and
(2) resided in the United States on such date.

(c) PROCESS FOR RELIEF FOR ELIGIBLE SPOUSES AND CHILDREN OUTSIDE THE UNITED STATES.
If an alien has obtained lawful permanent resident status under section 1104 of the Legal Immigration Family Equity Act and the alien has an eligible spouse or child who is no longer physically present in the United States, the Attorney General shall establish a process under which the eligible spouse or child may be paroled into the United States in order to obtain the benefits of subsection (a) unless the Attorney General finds that the spouse or child would be inadmissible or deportable on any ground, other than a ground for which the alien would not be subject to removal under subsection (a)(1). An alien so paroled shall not be treated as paroled into the United States for purposes of section 201(c)(4) of the Immigration and Nationality Act (8 U.S.C. 1151(c)(4)).

(d) EXCEPTION.--An alien is not eligible for the benefits of this section if the Attorney General finds that--
(1) the alien has been convicted of a felony or three or more misdemeanors in the United States; or
(2) the alien is described in section 241(b)(3)(B) of the Immigration and Nationality Act (8 U.S.C. 1231(b)(3)(B)).

(e) APPLICATION OF DEFINITIONS.--Except as otherwise specifically provided in this section, the definitions contained in the Immigration and Nationality Act shall apply in the administration of this section.

SEC. 1505. MISCELLANEOUS AMENDMENTS TO VARIOUS ADJUSTMENT AND RELIEF ACTS.

(a) NICARAGUAN ADJUSTMENT AND CENTRAL AMERICAN RELIEF ACT.--

(1) IN GENERAL.--Section 202(a) of the Nicaraguan Adjustment and Central American Relief Act is amended--
(A) by redesignating paragraph (2) as paragraph (3); and
(B) by inserting after paragraph (1) the following new paragraph:
``(2) RULES IN APPLYING CERTAIN PROVISIONS.--In the case of an alien described in subsection (b) or (d) who is applying for adjustment of status under this section--
``(A) the provisions of section 241(a)(5) of the Immigration and Nationality Act shall not apply; and
``(B) the Attorney General may grant the alien a waiver of the grounds of inadmissibility under subparagraphs (A) and (C) of section 212(a)(9) of such Act.
In granting waivers under subparagraph (B), the Attorney General shall use standards used in granting consent under subparagraphs (A)(iii) and (C)(ii) of such section 212(a)(9).''.

(2) PERMITTING MOTION TO REOPEN. Notwithstanding any time and number limitations imposed by law on motions to reopen exclusion, removal, or deportation proceedings (except limitations premised on an alien's conviction of an aggravated felony (as defined by section 101(a) of the Immigration and Nationality Act)), a national of Cuba or Nicaragua who has become eligible for adjustment of status under the Nicaraguan Adjustment and Central American Relief Act as a result of the amendments made by paragraph (1), may file one motion to reopen exclusion, deportation, or removal proceedings to apply for such adjustment under that Act. The scope of any proceeding reopened on this basis shall be limited to a determination of the alien's eligibility for adjustment of status under that Act. All such motions shall be filed within 180 days of the date of the enactment of this Act.

(b) HAITIAN REFUGEE IMMIGRATION FAIRNESS ACT OF 1998.--
(1) INAPPLICABILITY OF CERTAIN PROVISIONS.--Section 902(a) of the Haitian Refugee Immigration Fairness Act of 1998 is amended--
(A) by redesignating paragraph (2) as paragraph (3); and
(B) by inserting after paragraph (1) the following new paragraph:
``(2) INAPPLICABILITY OF CERTAIN PROVISIONS.--In the case of an alien described in subsection (b) or (d) who is applying for adjustment of status under this section--
``(A) the provisions of section 241(a)(5) of the Immigration and Nationality Act shall not apply; and
``(B) the Attorney General may grant the alien a waiver of the grounds of inadmissibility under subparagraphs (A) and (C) of section 212(a)(9) of such Act.
In granting waivers under subparagraph (B), the Attorney General shall use standards used in granting consent under subparagraphs (A)(iii) and (C)(ii) of such section 212(a)(9).''.

(2) PERMITTING MOTION TO REOPEN.--Notwithstanding any time and number limitations imposed by law on motions to reopen exclusion, removal, or deportation proceedings (except limitations premised on an alien's conviction of an aggravated felony (as defined by section 101(a) of the Immigration and Nationality Act)), a national of Haiti who has become eligible for adjustment of status under the Haitian Refugee Immigration Fairness Act of 1998 as a result of the amendments made by paragraph (1), may file one motion to reopen exclusion, deportation, or removal proceedings to apply for such adjustment under that Act. The scope of any proceeding reopened on this basis shall be limited to a determination of the alien's eligibility for adjustment of status under that Act. All such motions shall be filed within 180 days of the date of the enactment of this Act.
(c) SECTION 309 OF IIRIRA.--Section 309 of the Illegal Immigration Reform and Immigrant Responsibility Act of 1996 is amended by adding at the end the following new subsection:
``(h) RELIEF AND MOTIONS TO REOPEN.--
``(1) RELIEF.--An alien described in subsection (c)(5)(C)(i) who is otherwise eligible for--
``(A) suspension of deportation pursuant to section 244(a) of the Immigration and Nationality Act, as in effect before the title III-A effective date; or
``(B) cancellation of removal, pursuant to section 240A(b) of the Immigration and Nationality Act and subsection (f) of this section; shall not be barred from applying for such relief by operation of section 241(a)(5) of the Immigration and National Act, as in effect after the title III-A effective date.
``(2) ADDITIONAL MOTION TO REOPEN PERMITTED.--Notwithstanding any limitation imposed by law on motions to reopen removal or deportation proceedings (except limitations premised on an alien's conviction of an aggravated felony (as defined by section 101(a) of the Immigration and Nationality Act)), any alien who is described in subsection (c)(5)(C)(i) and who has become eligible for cancellation of removal or suspension of deportation as a result of the enactment of paragraph (1) may file one motion to reopen removal or deportation proceedings in order to apply for cancellation of removal or suspension of deportation. The scope of any proceeding reopened on this basis shall be limited to a determination of the alien's eligibility for cancellation of removal or suspension of deportation. The Attorney General shall designate a specific time period in which all such motions to reopen are required to be filed. The period shall begin not later than 60 days after the date of the enactment of this subsection and shall extend for a period not to exceed 240 days.
``(3) CONSTRUCTION.--Nothing in this subsection shall preclude an alien from filing a motion to reopen pursuant to section 240(b)(5)(C)(ii) of the Immigration and Nationality Act, or section 242B(c)(3)(B) of such Act (as in effect before the title III-A effective date).''.

SEC. 1506. EFFECTIVE DATE.

This title shall take effect as if included in the enactment of the Legal Immigration Family Equity Act. 39LE0004

 

* Third Country National IV Application Procedures in Ciudad Juarez/Mexico

As people know, non-Mexicans can apply for EB-based immigrant visa application on the Consulate's discretion and on the following two conditions: I-485 should be pending and I-824 has been filed.
In a recent meeting with the State Bar of Texas, Mr. Santiago Burciaga, the Chief of Immigrant Visa Section, explained the outline of the procedures as follows:
*Where to send:
U.S. Consulate-Ciudad Juarez, Mexico
Immigrant Visa Section
P.O. Box 10545
El Paso, Texas 79995-0545
*What documents:
A complete copy of the I-140 petition
I-140 Approval Notice
I-824 Receit Notice from the INS
A completed set of Packet 3 (Download the forms/instructions at the Consular website.)
*Follow-Up Inquiry:
Wait for 30 days to find out whether it has been accepted for the discretionary processing
Contact by one of the following means:
Letter: Above P.O. Box number
Fax: 011-52-16-16-90-27 or 16-93-88
Phone: 011-52-16-11-30-00, Extension 2232.
*Aging-out cases are accepted and expedited to accomodate the processing prior to the 21st birthday of the child.
(Effective 11/00)

* Certain Indochinese Immigration Opportunities

* DOS AC 21 Cable to Posts

A NEW H1-B LAW: THE AMERICAN COMPETITIVENESS IN THE TWENTY-FIRST CENTURY ACT OF 2000

1. ON OCTOBER 17TH, THE PRESIDENT SIGNED HR 2045, A BILL TO AMEND THE IMMIGRATION AND NATIONALITY ACT WITH RESPECT TO H-1B NONIMMIGRANT ALIENS. TITLE I OF THIS LAW IS KNOWN AS THE "AMERICAN COMPETITIVENESS IN THE TWENTY-FIRST CENTURY ACT OF 2000" AND CONTAINS NUMEROUS AMENDMENTS TO THE INA WITH REGARDS TO H-1B AND EMPLOYMENT-BASED IMMIGRANT VISAS.

THEFOLLOWING IS A SUMMARY OF THE KEY CONSULAR-RELATED CHANGES CONTAINED IN THE ACT.

CHANGES TO THE H-1B ANNUAL LIMIT

---------------------------------

2. SECTION 102 OF THE ACT RAISES THE ANNUAL CAP FOR H-LBS FOR FISCAL YEARS 2001, 2002, AND 2003 TO 195,000 PER YEAR. THE ACT RETROACTIVELY RAISES THE FY99 ANNUAL CAP TO THE NUMBER OF ALIENS WHO WERE ACTUALLY GRANTED H-1B STATUS DURING THAT YEAR AND RETROACTIVELY RAISES THE FY2000 ANNUAL CAP TO THE NUMBER OF ALIENS WHO WERE, OR MAY BE, ISSUED VISAS OR OTHERWISE GRANTED STATUS BASED ON PETITIONS FILED BEFORE SEPTEMBER 1ST, 2000. THIS LATTER PROVISION MEANS THE FY2001 COUNTER WAS EFFECTIVELY RESET TO ZERO ON AUGUST 31TH OF THIS YEAR. THE LARGE NUMBER OF H-1B PETITIONS THAT HAD BEEN APPROVED DURING THE SUMMER FOR FY2001 EMPLOYMENT (AND COUNTED AGAINST THE FY2001 CAP) WILL NOW BE CHARGED AGAINST THE FY2000 CAP.

 

CERTAIN H-1B PETITIONS EXEMPT FROM THE ANNUAL LIMIT

----------------------------------------------------

3. SECTION 103 EXEMPTS FROM THE ANNUAL CAP H-1B ALIENS WHO ARE EMPLOYED (OR OFFERED EMPLOYMENT) AT (A) AN INSTITUTION OF HIGHER EDUCATION OR A RELATED OR AFFILIATED NONPROFIT ENTITY; OR (B) A NONPROFIT RESEARCH ORGANIZATION OR A GOVERNMENTAL RESEARCH ORGANIZATION. HOWEVER, IF THE ALIEN LEAVES THE EXEMPTED EMPLOYMENT AND OBTAINS EMPLOYMENT WITH A NON-EXEMPT EMPLOYER, THE ALIEN MUST BE COUNTED AT THAT TIME. SECTION 114 ALSO EXEMPTS H-1B ALIENS FROM THE ANNUAL CAP WHO ARE SUBJECT TO 212(E) AND WHO HAVE BEEN GRANTED A WAIVER OF THE TWO-YEAR FOREIGN RESIDENCE UNDER INA '214(SMALL L) (1)(B). CONGRESS ALSO SOUGHT TO ENSURE THAT AN ALIEN IS ONLY COUNTED ONCE, EVEN IF HE OR SHE IS THE BENEFICIARY OF MULTIPLE H-1B PETITIONS. SECTION 103 THEREFORE ALSO EXEMPTS AN H-1B ALIEN FROM THE ANNUAL CAP IF THAT ALIEN HAS ALREADY BEEN COUNTED AGAINST THE CAP WITHIN THE LAST SIX YEARS. (IF THE ALIEN WOULD BE ELIGIBLE FOR THE FULL SIX YEARS OF AUTHORIZED ADMISSION AT THE TIME THE PETITION IS FILED, HOWEVER, THE ALIEN WILL BE COUNTED AGAINST THE CAP.)

 

GREATER AVAILABILITY OF EMPLOYMENT-BASED IMMIGRANT VISAS

---------------------------------------------------------

4. IN FISCAL YEARS 1999 AND 2000, DUE IN PART TO THE PER-COUNTRY LIMITS AND INS BACKLOGS, THE ANNUAL LIMIT FOR EMPLOYMENT-BASED IMMIGRANT VISAS WAS NOT REACHED DESPITE A LARGE APPARENT DEMAND. THE ACT MAKES THREE CHANGES TO ATTEMPT TO RECTIFY THE SITUATION WITH REGARD TO PER COUNTRY LIMITS. FIRST, SECTION 106 RECAPTURES THOSE EMPLOYMENT-BASED VISA NUMBERS WHICH WERE AVAILABLE BUT NOT USED IN FISCAL YEARS 1999 AND 2000 AND MAKES THEM AVAILABLE TO E1, E2, E3, AND EW APPLICANTS BEGINNING IN FY-2001.

5. SECOND, SECTION 104 REMOVES THE PER-COUNTRY LIMIT IN INSTANCES WHERE THE OVERALL APPLICATIONS FOR EMPLOYMENT- BASED VISAS ARE LESS THAN THE NUMBERS AVAILABLE WITHOUT REGARD TO THOSE LIMITS. VO/F/I WILL BE REQUIRED TO COMPARE THE OVERALL DEMAND TO THE AVAILABLE NUMBERS ON A QUARTERLY BASIS. IF THE TOTAL NUMBER OF AVAILABLE EMPLOYMENT-BASED VISAS IS GREATER THAN THE NUMBER OF QUALIFIED APPLICANTS WHO MAY OTHERWISE BE ISSUED SUCH VISAS (DURING THE SAME PERIOD), THE PER-COUNTRY LIMITATIONS ON EMPLOYMENT-BASED IV WILL BE LIFTED FOR THE REMAINDER OF THAT QUARTER.

6. FINALLY, SECTION 104 ALSO PROVIDES THAT AN H-1B ALIEN WHO HAS APPLIED FOR AND WHO IS OTHERWISE ELIGIBLE FOR ADJUSTMENT OF STATUS BUT FOR THE PER-COUNTRY LIMITS, MAY OBTAIN AN EXTENSION OF STATUS WITHOUT REGARD TO THE SIX- YEAR LIMIT, UNTIL A DETERMINATION IS MADE IN HIS OR HER ADJUSTMENT CASE.

"PORTABILITY" OF H1-B STATUS

-----------------------------

7. SECTION 105 INCREASES THE ABILITY OF AN H-1B APPLICANT TO CHANGE JOBS WHILE IN THE U.S. IF AN H1-B ALIEN

. HAS BEEN LAWFULLY ADMITTED TO THE U.S.,

. IS THE BENEFICIARY OF A NON-FRIVOLOUS PETITION FOR NEW

EMPLOYMENT FILED BEFORE THE EXPIRATION OF HIS/HER

AUTHORIZED PERIOD OF STAY; AND

. HAS NOT BEEN EMPLOYED IN THE U.S. WITHOUT

AUTHORIZATION SUBSEQUENT TO HIS/HER LAWFUL ADMISSION

BUT BEFORE THE FILING OF SUCH PETITION,

THEN THAT ALIEN IS AUTHORIZED TO ACCEPT NEW H1-B EMPLOYMENT WITH A NEW EMPLOYER FROM THE TIME THAT EMPLOYER FILES A PETITION UNTIL THE PETITION IS ADJUDICATED. IF THE NEW PETITION IS DENIED, SUCH AUTHORIZATION SHALL CEASE.

 

EXTENDING AUTHORIZED STAY AND EMPLOYMENT FLEXIBILITY IN CASES OF LENGTHY ADJUDICATIONS

---------------------------------------------------------

8. ALTHOUGH ALIENS GENERALLY MAY REMAIN IN H-1B STATUS FOR NO MORE THAN SIX YEARS, SECTION 106 ALLOWS INS TO EXTEND AN ALIEN'S H-1B STATUS BEYOND SIX YEARS IN CERTAIN CIRCUMSTANCES. INS MAY EXTEND H-1B STATUS IN ONE-YEAR INCREMENTS FOR ANY H-1B ALIEN WHO HAS EITHER AN EMPLOYMENT-BASED IMMIGRATION PETITION OR APPLICATION FOR ADJUSTMENT OF STATUS PENDING AND MORE THAN 365 DAYS HAVE PASSED SINCE EITHER THE LABOR CERTIFICATION APPLICATION (IF APPLICABLE) OR THE PETITION WAS FILED. EXTENSIONS MAY CONTINUE UNTIL THE ALIEN'S PETITION IS DENIED OR THE ALIEN'S ADJUSTMENT IS ADJUDICATED.

9. SECTION 106 FURTHER PROVIDES THAT AN ALIEN WHOSE APPLICATION FOR ADJUSTMENT OF STATUS HAS REMAINED UNADJUDICATED FOR 180 DAYS OR MORE MAY CHANGE EMPLOYERS WITHIN THE SAME OR SIMILAR OCCUPATIONAL CLASSIFICATION WITHOUT HAVING TO OBTAIN APPROVAL OF A NEW PETITION.

EXTENSION OF CERTAIN REQUIREMENTS AND AUTHORITIES

--------------------------------------------------

10. SECTION 10 EXTENDS UNTIL OCTOBER 1, 2003 THE REQUIREMENT THAT H-1B DEPENDENT EMPLOYERS ATTEST THAT THE HIRING OF AN H-1B ALIEN HAS NOT AND WILL NOT WITHIN THE 90 DAY PERIOD PRIOR TO AND THE 90 DAY PERIOD AFTER THE FILING OF AN H-1B PETITION RESULT IN THE DISPLACEMENT OF A U.S. WORKER. IT ALSO EXTENDS UNTIL THE SAME DATE CERTAIN INVESTIGATIVE AUTHORITY IN H-1B MATTERS GIVEN TO THE SECRETARY OF LABOR. BOTH OF THESE PROVISIONS WERE ENACTED IN THE AMERICAN COMPETITIVE WORKFORCE IMPROVEMENT ACT (ACWIA) OF 1998.

 

RECOVERY OF VISAS USED FRAUDULENTLY

-------------------------------------

11. SECTION 108 PROVIDES FOR THE RECOVERY OF AN H-1B NUMBER WHEN AN APPROVED H-1B PETITION IS DETERMINED BY INS TO HAVE BEEN OBTAINED THROUGH FRAUD. THE NUMBER WILL BE APPLIED TO THE NUMERICAL LIMIT FOR THE FISCAL YEAR IN WHICH THE PETITION IS REVOKED.

ALBRIGHT

(Courtesy of AILA)

 

* INS Reading of AC 21 (S.2045) Law As Reflected in 11/00 Flier for Employers

(Caveat: Please do not take this information as law or formal interpretation of the new law by the INS. People should never act solely in reliance on this Bulletin. They should seek legal counsel on the new law. This website will not be responsible for such reliance.)

Employer Information Bulletin 99-07 H-1B Specialty Workers (11/00)
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UNITED STATES DEPARTMENT OF JUSTICE
IMMIGRATION AND NATURALIZATION SERVICE
Office of Business Liaison

Public inquiries: Employer hotline 800-357-2099 Fax 202-305-2523 E-mail office.business.liaison@usdoj.gov
Public information: Fax-on-demand 202-514-2033 Order INS Forms 800-870-3676 Website www.usdoj.gov/ins/
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ATTENTION! New law regarding H-1b employment effective October 17, 2000 (See outline of these and other provisions effective 10/30 and 12/18 on last page of this revised employer bulletin.)


H-1B SPECIALTY WORKERS
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Step 1: Labor Condition Application (LCA) Deciding agency: DOL
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Attestation
Employer applicants must list number of workers sought as well as their occupational classification(s), wage rates, and working conditions. Employers must attest that:
· Prevailing wage rate for area of employment will be paid.
· Working conditions of H-1b employee will not adversely affect similarly employed American workers.
· Place of employment is not experiencing a labor dispute involving a strike or lockout.
· Notice of LCA filing is posted in place of employment or is given to employee bargaining representative.
Procedures/conditions
· Employer applicants file Form ETA 9035 with DOL regional office serving area where specialty worker will be employed.
· DOL reviews LCA for completeness and certifies within 7-day period , returning copy to employer.
· LCA is valid for 3-year initial H-1b admission period (or any lesser period requested by petitioning employer) provided there are no material changes in position, work location, or employer.
· LCA must be used by employer within 6 months of intended employment date.
· LCA may cover multiple workers in the same occupation.
· Special restrictions apply for positions that require employees to work in more than one location.
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Step 2: Petition (Form I-129) Deciding agency: INS
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Petition
· Employer petitioner files Form I-129 , plus H Supplement and fee , at INS Service Center nearest to place of employment, including certified LCA and letter of support from employer/petitioner. If the beneficiary is present in the US under another nonimmigrant classification, the same Form I-129 is also used to request change of status for the beneficiary from the current classification to H-1b.
· New! All H-1B petitions must include the Revised Version of Form I-129W (H-1B Data Collection and Filing Fee Exemption Form), providing information INS needs to comply with statistical and reporting requirements. The form will still be used to substantiate exemption of eligible petitioners from the special H-1b filing fee.
· If petition is approvable and H-1b numbers are available for employment beginning when requested by the petitioner , INS mails approval to employer petitioner on Notice of Action Form I-797B. A replacement Form I-94, indicating new H-1b approval dates, is attached in tear-off form to the Notice of Action.
· If H-1b petition is denied, it is appealable to INS' Administrative Appeals Office.
· Change of status inside the US is an alternative to consular processing. Regarding H-1b beneficiaries waiting for H-1b approval outside the US, Service Centers notify the consulates and/or instruct beneficiaries to bring Form I-797 approval notice and copy of H-1b petition to the consulate to support application for an H-1b visa.
Terms and conditions of H-1b classification
· H-1b employment is temporary. The maximum allowable continuous period of H-1b employment is 6 years.
· A combination of education, training, and work experience may substitute for a bachelor's degree. In such cases, three years of specialized training and/or experience can substitute for one year of college study.
· H-1b foreign specialty workers are entitled to have "dual intent," i.e. they are not presumed to be intending immigrants, not required to maintain foreign residence, and are entitled to engage in temporary approved employment while pursuing permanent residence in the US.
· For a petition to be approved, the type of position offered to the H-1b beneficiary must commonly require H-1b level credentials within the employer's trade or industry.
· There is an annual cap on new H-1b approvals of 195,000 workers.
· The annual cap does not apply to H-1b petitions for extension of stay or change of employer.
· Work authorization for H-1b foreign specialty workers is employer-specific (limited to employer/petitioner).
· If more than one employer will employ an H-1b nonimmigrant (i.e. the H-1b nonimmigrant will have two or more part-time H-1b positions), each employer must file a separate LCA and Form I-129.
· H-1b employers must pay return transportation costs for employees terminated prior to end of approved period.
· Employers must notify INS when H-1b workers are terminated so that INS may recapture those H-1b numbers for use by the beneficiaries of other H-1b petitions for new employment.
· H-1b dependents may not be employed under H-4 classification.
Duration of stay
Approved H-1b nonimmigrants are initially admitted for the approved period or a maximum of 3 years. Extension(s) of stay may be approved up to a maximum cumulative period of 6 years (see FN 14). In order to be readmitted as a specialty worker after working in the US under the H-1b classification for the maximum period of time, the alien worker must remain outside the US for at least one year and the employer must file a new petition.
------------------------------------------------------------------------------
Step 3: Consular visa (alternative to change of status in the US) Deciding entity: US Consulate
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Procedure
o Employee files Form OF-156 plus I-797B tear-off at US Consulate abroad (Canadians exempt).
o Visa allows alien to board a common carrier and apply for admission to US under classification indicated on visa.
Terms and conditions
Visa issuance is subject to consular discretion. In H-1b cases, consular officers review whether the intended US activities are consistent with the H-1b classification. If they are or become aware that representations made in INS petitions are questionable or inaccurate, they may deny visas. For H-1b aliens, who are permitted under law to have dual intent, consular officers will not require proof of unabandoned foreign residence or intent to return to the home country. The duration of a visa generally depends upon reciprocity between the US and the home country and may provide for single or multiple entry into the US. Note that visas are typically valid for the period of time indicated on the petition approval notice. Where extension of stay is sought and granted, a new visa is needed.
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OTHER H-1B ISSUES
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AMENDMENT OF H-1b PETITIONS (See also legislative changes below, effective 10/30/00)
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CAUTION! Letters, policy memoranda, e-mail and phone conversations do not carry the force of law.
Change of Employer Name and/or Ownership Structure
INS' Aleinikoff policy memorandum (8-22-96) states that "changes in the ownership structure of the petitioning entity generally do not require the filing of a new or amended [H-1b] petition if the petitioning entity continues to remain the alien beneficiary's employer, provided the new owner(s) of the firm assumes the previous owner's duties and liabilities..." This has been interpreted by INS to apply to acquisition of discrete functional components or divisions of companies. See also important changes below effective in 10/30/00 Visa Waiver Program.
Transfers of H-1b employees
INS' Hogan policy memorandum (10-22-92), requiring amendment of H-1b petitions when an H-1b employee is transferred, is affected by the 10-17-00 legislation (see below). Transferred H-1b employees may now move immediately. If the new firm has common hiring/firing authority with the approved petitioner (i.e. a branch), amendment of the H-1b petition is unnecessary as long as the change in geographic location does not necessitate a new LCA. If the subsequent employer is a different employer, the new firm must merely have filed a new or amended LCA and/or petition, as applicable.
Mergers
The Hogan policy memorandum provides that when an H-1b beneficiary's employer merges with another firm to create a third entity that will employ the beneficiary, a new or amended petition must be filed because the merger has created a new legal entity. See changes below effective in 10/30/00 Visa Waiver Program legislation.
Change in Specialty Occupation
When an H-1b employee changes specialty occupation , an amended petition (with a new LCA) must be filed.
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UNLAWFUL PRESENCE
--------------------
Nonimmigrant employees can suffer serious consequences from lapses or breaches of status. In the event of an overstay, the H-1b consular visa is automatically canceled, meaning that in most cases an alien who needs to travel will have to return to the home country to obtain a new consular visa before re-entering the US. As of the date of overstay, the alien will also begin to accrue time in unlawful presence. Unlawful presence also begins to accrue when an immigration judge makes a determination of breach of H-1b status or where an INS adjudicator denies extension of stay, change of status, or change of H-1b employment because of a lapse of status. If 180 days of unlawful presence accrue, the alien becomes inadmissible to the US for 3 years. If 360 or more days of unlawful presence accrue, he or she becomes inadmissible to the US for 10 years.

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HOW H-1b PETITIONS WERE PROCESSED VIS A VIS THE FY 2000 H-1B CAP
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· FY 2000 petitions for first-time employment of H-1B workers received before March 21, 2000 were not returned. Some of these petitions were approved, if complete, in receipt order, until the FY2000 numbers were exhausted. Filed petitions that remained after FY2000 numbers were exhausted were adjudicated and, if approvable, approved effective October 1, 2000, when H-1B numbers for FY 2001 became available.
· FY 2000 petitions for first-time employment of H-1B workers received on or after March 21, 2000, were returned along with the accompanying fees to petitioners. Petitioners could resubmit their petitions at any time and request employment beginning on or after October 1, 2000.
· Petitioners whose petitions were accepted could choose to withdraw those petitions at any time by submitting a written request containing the receipt number of the H-1b petition, the name of the employer, and the name of the alien beneficiary. The associated fees in these cases were forfeited. Withdrawal requests were to be faxed to the Immigration Services Division, Attention: H-1B Withdrawal, FAX (202) 514-2093.
· As of April 1, 2000, H-1b petitions requesting first-time employment of H-1b workers beginning on or after October 1, 2000 (FY 2001) were accepted and processed in receipt order against the 107,500 cap for FY 2001.
· Effect of reaching the FY2000 cap on continuing H-1b employment: INS continued to process petitions filed for current H-1b workers who remained in valid H-1b status. Under law in effect prior to October 17, 2000, H-1b petitions naming beneficiaries whose H-1b status had lapsed required new H-1b numbers and were subject to the cap. Petitions for extension of current H-1b employment, amendment of terms and conditions of approved H-1b employment, change of H-1b employment, and concurrent H-1b employment were not subject to the cap.
· Effect of reaching the cap on foreign students and exchange visitors named as beneficiaries in H-1b petitions: As provided in the Federal Register, duration of status (D/S) for certain F-1 and J-1 classification foreign students and exchange visitors was extended. As had been the case in fiscal year 1999 when the H-1b cap was reached, any F-1 or J-1 alien whose employer timely filed an H-1b petition prior to commencement of the next fiscal year was permitted to remain in the US until INS adjudicated the related petition. Students in this situation whose work authorization had otherwise expired were not permitted to work or engage in other activity that would violate F or J immigration status during this period.

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ATTENTION! Changes to the law affecting H-1b employment
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1. American Competitiveness in the 21st Century Act (Public Law 106-313), effective October 17, 2000
· Annual H-1b cap was raised to 195,000 through fiscal year ending September 30, 2003.
· H-1b petitions filed before September 1, 2000, and subsequently approved, were exempted from the new FY2001 H-1b cap (they are counted under the FY2000 cap).
· Petitions filed by higher education institutions (or related or affiliated nonprofit entity) and nonprofit or governmental research organizations are exempt from both the annual H-1b quota and special H-1b fee.
· Petitions naming beneficiaries who are foreign physicians under J-1 classification whose 2-year foreign residence requirement has been waived are exempt from the annual H-1b cap.
· Aliens who are approved for H-1b employment with exempt organizations and subsequently change employment to non-exempt organizations will become subject to the annual H-1b quota in the year that the non-exempt employment commences.
· Any alien counted within the H-1b cap within 6 years prior to submission of a non-exempt H-1b petition will not be counted again (or limited by the annual quota) against the annual cap unless the alien would be eligible for another full 6 years of H-1b employment at the time the petition is filed.
· Where multiple petitions naming the same H-1b beneficiary are approved, the alien will be counted only once against the annual H-1b cap (this already was INS practice).
· Employment-based immigrant visas that are not issued within a given calendar quarter will be issued in subsequent quarters without regard to per country quotas.
· The combined employment-based preference categories, during a given calendar quarter, will be issued without regard to the restriction that no more than 28.6% of the worldwide number of employment-based immigrant visas be issued to aliens approved under the 2nd preference category (aliens with exceptional ability or advanced degrees).
· Any alien approved for permanent residence under the 1st, 2nd, or 3rd preference category, but ineligible to adjust status due to per country limits, may extend nonimmigrant status for the period of time necessary for the adjustment to be processed (extension valid for duration of processing period).
· An alien previously issued an H-1b visa and/or granted H-1b status, who has maintained status and not worked without authorization since his/her last lawful admission, may accept new employment provided that the new employer has filed a non-frivolous petition naming that alien as beneficiary. This applies to petitions filed both before and after enactment
· Adjustment applicants whose applications have been pending for over 180 days may change positions within the same company or change employers without invalidating the underlying I-140 petition, provided that the new employment is within the same or similar occupational classification.
· Employment-based immigrant visas unused in FY99-00 are available in subsequent fiscal years
· H-1b aliens named as beneficiaries in filed I-140 petitions, whose labor certifications have been pending for 365 days or longer, may extend H-1b status past the maximum of 6 years, one year at a time, until they adjust status or obtain an immigrant visa
· Provisions enacted in the American Competitiveness and Worksite Improvement Act of 1998 with regard to dependent H-1b employers will remain in effect through fiscal year 2003
· Where H-1b petitions are revoked due to fraud or misrepresentation, H-1b visa numbers will be correspondingly restored to the annual H-1b cap for the year in which the revocation occurs
2. Public Law 106-311, effective December 18, 2000
The H-1b fee for non-exempt employers will rise from $500 to $1000. The types of H-1b petitions subject to the fee remain the same.
3. Visa Waiver Permanent Program Act, enacted October 30, 2000
An amended H-1b petition is not required where the petitioning employer is involved in a corporate restructuring, including but not limited to a merger, acquisition, or consolidation, where the new H-1b employer following the restructuring acquires all or substantially all of the liabilities as well as assets of the original H-1b employer and where the terms and conditions of the H-1b employment remain the same except for the identity of the subsequent H-1b employer. Note: this provision applies whether or not the subsequent employer pays the H-1b employee under a new Employer Identification Number (EIN) and/or whether the Labor Condition Application (LCA) must be amended as a result of the restructuring.

* Victims of Trafficking & Violence Prevention Act of 2000 (Abused Women Protection Law)

Click here for President's signing statement

* Summary (Courtesy of National Immigrants Law Center)

* Background

The Victims of Trafficking and Violence Protection Act of 2000 (H.R. 3244)
passed Congress last Wednesday, October 11. The measure, which will soon
receive President Clinton's enthusiastic signature, incorporates both the
Violence Against Women Act reauthorization (VAWA 2000) and protection for
traffickers, which had been working their way through Congress on separate
tracks.

As passed, H.R. 3244 includes the Senate VAWA provisions, which expand and
improve protections for immigrant battered spouses and children under the
original VAWA, which was enacted in 1994.

Under pre-VAWA immigration law, immigrant spouses and children of U.S.
citizens or lawful permanent residents (LPRs) were dependent on the citizen
or LPR to petition to immigrate them, and this dependency left them
particularly subject to abuse on the part of that relative. VAWA created a
procedure whereby abused spouses and their children or abused children and
their parents can "self-petition" to obtain LPR status without the
cooperation of the abusing relative. VAWA also enabled battered spouses
and
children to obtain suspension of deportation or cancellation of removal if
they were present in the U.S. for at least three years rather than the
seven
years normally required for suspension or ten years for cancellation.

But the experience of intervening years has exposed some of the weaknesses
of the original VAWA immigrant protections, and in addition, updates were
needed to harmonize VAWA with changes in immigration law that have been
enacted in the intervening years.

In addition to improvements in the 1994 version of VAWA, H.R. 3244 also
creates two new visa categories. One, the "T" visa, provides legal status
for up to 5,000 victims of "a severe form of trafficking in persons" each
year. Severe form of trafficking is defined to include sex trafficking and
forced labor. The other new visa, the "U" visa, is available to up to
10,000 victims of certain crimes each year who cooperate in the
investigation or prosecution of the perpetrators. Both new visas provide
nonimmigrant status, including work authorization, to the victims and
certain family members, most of whom will be able to adjust to Lawful
Permanent Resident status after 3 years.

* Summary of immigrant provisions of H.R. 3244 as passed by Congress

- Reduced obstacles based on family/marital status

VAWA 2000 removes a number of obstacles that battered spouses and children
have encountered in attempting to use provisions of the VAWA intended to
help them. For example, a battered spouse whose marriage is defective
because her husband failed to tell her that he was already married is not
eligible to immigrate under VAWA 1994. VAWA 2000 corrects this problem by
allowing individuals who believed that they were married to a U.S. citizen
or LPR to self-petition.

VAWA 2000 also allows individuals to self-petition even though they have
been divorced from the citizen or LPR, provided that the marriage
terminated
within the past two years and a connection between the termination of the
marriage and the abuse of the immigrant can be shown. These changes also
apply to VAWA suspension of deportation and cancellation of removal.
Moreover, individuals may self-petition even if the citizen relative has
died, provided they petition within two years of the death.

- No need to travel home to apply for VAWA visa

The new law allows all VAWA self-petitioners to apply for adjustment of
status in the United States, regardless of whether they were inspected when
they entered the country or whether they subsequently maintained lawful
status.

- "Extreme hardship" and other requirements for VAWA self-petitioners

The act also eliminates the disparate treatment of self-petitioners who,
under prior law, had to meet certain requirements not applied to regular
family immigrant visa applicants. Most significantly, self-petitioners no
longer need to show that their deportation would cause "extreme hardship."
This eliminates an enormous evidentiary hurdle from the self-petition
procedure. The law also allows abused spouses and children of U.S.
employees or military personnel abroad to self-petition.

- Impact of change of status by abusive spouse or parent

Under the new law, if the U.S. citizen or LPR parent or spouse subsequently
loses that status for reasons related to their abusive conduct, the loss
does not affect the abused immigrant's eligibility to immigrate if they
petition within two years.

- Remarriage no longer a bar

Abused immigrants with approved self-petitions may now remarry without
causing the petition to be revoked.

- Good moral character

Self-petitioners under the new law still must show that they have "good
moral character." However, the new law partially exempts them from the bar
on establishing good moral character outlined in INA section 101(f). Under
that provision, immigrants cannot establish good moral character if they
have committed or been convicted of certain criminal acts. The new law
removes the bar if the act constitutes a ground of admissibility or
deportability that is waivable, and the act was connected to the abuse the
applicant suffered. There is a similar waiver for applicants for VAWA
suspension or cancellation.

- Children who "age out"

Under the act, children who have filed a self-petition or are derivative
beneficiaries of a parent's petition no longer "age out," or become subject
to normal family visa rules, when they become 21 years old. Instead, they
are treated as self-petitioners under the appropriate category (as
unmarried
sons or daughters of U.S. citizens or LPRs, or married sons or daughters of
citizens), with the parent's priority date.

- Relaxed continuous presence requirement

The act allows applicants for VAWA cancellation of removal to show that
they
have three years' continuous physical presence in the U.S., despite a
single
absence longer than 90 days or cumulative absences exceeding 180 days, if
there is a connection between the absence and the abuse perpetrated against
the applicant. The act also eliminates application of the "stop-time rule"
(under which service of a Notice to Appear stops the accrual of continuous
physical presence) in VAWA cancellation and suspension cases.

- Children or parents of persons granted VAWA suspension or cancellation

The act requires the attorney general to grant parole status to the
children
or parents of individuals who are granted VAWA suspension or cancellation.

- Motions to reopen proceedings due to VAWA 2000 changes

The act allows individuals who become eligible for VAWA suspension or
cancellation because of the changes made by the new law to move to reopen
their proceedings. It also amends the INA's time limitations on motions to
reopen, allowing individuals to file a motion to reopen to apply for VAWA
cancellation within one year of the entry of a final order. The attorney
general may also waive the one-year limitation in cases of extraordinary
circumstances or extreme hardship to a child.

- New waivers of grounds of inadmissibility and deportability for abused
immigrants

The act establishes waivers of certain grounds of inadmissibility for
abused
immigrants. There is a waiver of the ground of inadmissibility for
reentering the U.S. without inspection following a one-year period of
unlawful presence or after having been ordered removed. This waiver is
available to individuals who can establish a connection between the abuse
they suffered and their departure or reentry.

There is also a waiver of the ground of deportability for having a
conviction for a crime of domestic violence or for violation of a
protective
order, if the abused immigrant can show that she was not the primary
perpetrator of violence in the relationship. She must also show that she
was acting in self-defense or that the crime did not result in serious
bodily injury and was connected to the abuse that the immigrant suffered.

The act makes available to abused immigrants the INA's waivers for certain
criminal grounds (S 212(h)), fraud or misrepresentation (S 212(i)), and
health grounds (S 212(g)). Expanding the availability of these waivers was
considered necessary because they had been limited to spouses of U.S.
citizens or LPRs. Abused immigrants may no longer have such a
relationship.

- Public charge change for VAWA beneficiaries

The act amends the public charge ground of exclusion to provide that cash
or
other benefits received pursuant to 8 U.S.C. section 1641(c) (which permits
VAWA beneficiaries to obtain cash and other government assistance in
connection with their escape from domestic violence) may not be considered
in public charge determinations.

- Changes to the Cuban Adjustment Act, NACARA, and HRIFA

The act also amends the Cuban Adjustment Act, the adjustment of status
provisions of the Nicaraguan Adjustment and Central American Relief Act
(NACARA), and the Haitian Refugee Immigration Fairness Act (HRIFA). These
amendments allow abused spouses or children who are dependents of
individuals eligible for relief under these laws to adjust their status,
without having to reside with the principal or maintain the relationship.
Under the act, persons who become LPRs through VAWA may also apply for
naturalization after they have resided in the U.S. in LPR status for three
years.

- New "T" and "U" visas

The act creates two new categories of nonimmigrant visas.

"T" visas are available to victims of "a severe form of trafficking in
persons," who are in the U.S. because of the trafficking, who would suffer
"extreme hardship involving unusual and severe harm" if removed from the
U.S. Severe forms of trafficking include sex trafficking of persons under
18 years of age, or recruiting or obtaining persons for labor or services
through the use of force, fraud, or coercion "for the purpose of subjection
to involuntary servitude, peonage, debt bondage, or slavery."

Nearly all grounds of inadmissibility may be waived in these cases, and
individuals granted T visas may adjust to LPR status three years after they
are granted the T visa. If the Attorney General considers it necessary to
avoid extreme hardship, the victim's spouse and children (and parents, if
the victim is under 21 years old) are also eligible for a T visa as
derivatives. There is a limit of 5,000 T visas that may be issued in one
year, and 5,000 adjustments of T-visa holders that may be granted. This
numerical restriction applies only to principals and not to spouses,
children, or parents of the principal immigrant.

The other visa created by the act is the "U" visa, described in the
legislation as a "humanitarian/material witness" visa. The "U" visa is
available to immigrants who are either victims of or who possess
information
concerning one of the following forms of criminal activity: rape, torture,
trafficking, incest, domestic violence, sexual assault, abusive sexual
contact, prostitution, sexual exploitation, female genital mutilation,
hostage holding, peonage, involuntary servitude, slave trade, kidnapping,
abduction, unlawful criminal restraint, false imprisonment, blackmail,
extortion, manslaughter, murder, felonious assault, witness tampering,
obstruction of justice, perjury, or attempt, conspiracy, or solicitation to
commit one of these offenses.

A federal, state, or local official must certify that an investigation or
prosecution would be harmed without the assistance of the immigrant or, in
the case of a child, the immigrant's parent. Nearly all grounds of
inadmissibility may be waived in these cases, and individuals granted U
visas may adjust to LPR status three years after they are granted the U
visa. The spouse and children of the crime victim (and the parents of a
child victim) may also be granted a visa if the Attorney General considers
it necessary to avoid extreme hardship, or if the family member would be
helpful to the investigation or prosecution. There is a limit of 10,000 U
visas that may be issued in one year, applicable only to principals and not
to derivative family members.

- Trafficking victims expanded access to government benefits

Victims of a severe form of trafficking in persons are granted expanded
access to government benefits regardless of their immigration status. To
qualify, a trafficking victim must either be under 18 years old or obtain
certification from the U.S. Department of Health and Human Services (HHS)
of
the following:

(1) She is willing to assist in every reasonable way in the investigation
and prosecution of trafficking perpetrators (this does not require actual
cooperation, or even the existence of an investigation, just willingness to
cooperate); and

(2) She has made a bona fide application for a "T" visa that hasn't been
denied (or she has been granted permission to stay by the Attorney General
to assist in a prosecution of traffickers).

Although the language is murky, it appears that those who meet these
conditions will be eligible for all programs funded or administered by
federal agencies, including HHS, Legal Services Corporation, and the
Department of Labor, to the same extent as refugees, and, in the case of
food stamps and Supplemental Security Income (SSI), even more than
refugees.
As a practical matter, this should mean that qualifying trafficking victims
will be eligible for refugee-specific programs such as those administered
by
HHS' Office of Refugee Resettlement, and will also be eligible for all
non-refugee-specific federal programs on the same basis as U.S. citizens.

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FOR FURTHER INFORMATION, CONTACT:

National Immigration Law Center
Los Angeles Office: 213-639-3900
(general calls and requests for materials)
Washington, D.C. Office: 202-216-0261
(calls regarding policy issues)

* Public Charge Benefit Benefits Checklist

* INS HQ Memo Instructing Agency to Take I-824 as Withdrawal of 485! (Courtesy of AILA)

U.S. Department of Justice
Immigration and Naturalization Service

HQ70/23.1P
Office of the Executive Associate Commissioner
425 I Street NW
Washington, DC. 20536

August 8, 2000

MEMORANDUM FOR:

All Regional Directors
All Service Center Directors
All District Directors
All Officers In Charge
All Training Academies

FROM:

Michael Cronin [signed by Thomas Cook for Michael Cronin]
Acting Executive Associate Commissioner
Office of Programs

SUBJECT: Prohibition on Concurrent Pursuit of Adjustment of Status and Consular Processing (AD00-15)

Chapter 23.2 of the Adjudicator's Field Manual, provides guidance on general adjustment of status issues. This memorandum addresses instances where a beneficiary seeks to pursue both adjustment of status and consular processing in order to ensure availability of a visa number.

In Chapter 23 of the Adjudicator's Field Manual, a new section 23.2(1) is added to read as follows:

23.2 General Adjustment of Status Issues.

Concurrent pursuit of adjustment of status and consular Processing.

(1) Background. In 1999, the Service issued policy guidance on when the filing of a Form I-824, Request for Action on an Approved Application or Petition, was appropriate. That guidance advised that a Form I-824 should be filed when the petitioner requests a change in the initial manner of processing noted on the visa petition. It has come to the Service's attention that applicants for Adjustment of Status are also using the Form I-824, or in some cases submitting a duplicate visa petition, to request concurrent consular processing.

The Office of Field Operations and the Office of Programs have reviewed the issue of concurrent pursuit of adjustment of status and consular processing and determined that concurrent pursuit would not be an efficient and effective use of the Service's resources. Further, the pursuit of concurrent filing for adjustment of status and overseas visa processing runs the risk of allocating more than one visa number to the same immigrant.

(2) Guidelines. When an alien with a pending I-485 files a Form I-824 requesting that the visa petition be forwarded to a consulate the alien or the attorney of record will be notified that the I-824 will be treated as a request to withdraw the I-485. In accordance with 8 CFR 103.2(b)(8) the notice will provide the alien a response time in which to advise the Service on how they wish to proceed. The I-485 is to be terminated by written notice if the alien chooses to pursue consular processing or fails to respond within the time granted. This notice will also advise the alien of the termination of any employment authorization granted under 8 CFR 274a.12(c)(9). The I-824 is then to be approved, and the visa petition forwarded to the National Visa Center (NVC) for processing.

Likewise, if the Service receives a "duplicate" immigrant visa petition requesting consular processing, and the alien has a pending I-485, the Service will notify the alien or the attorney of record that the duplicate petition will be treated as a request to withdraw the I-485, as above, provide a response time in which to advise the Service on how they wish to proceed. The I-485 is to be terminated by written notice if the alien wishes to pursue consular processing or fails to timely respond. This notice will advise the alien of the termination of any employment authorization granted under 8 CFR 274a.12(c)(9). The visa petition along with the duplicate is then to be forwarded to the NVC for processing.

*Matthew Oh, Esq. Reflects on New Legislation, S. 2045 (Click here for future reference)

 

AILA Summary and Analysis of S. 2045

Disclaimer: This analysis in this web site should not be a substitute for reading and analyzing the full text of the law, and should not be relied upon to provide legal advice to clients. Both AILA and this firm will not be responsible for the consequences of such reliance.

Cap Increase:

Special Rule for Universities, Research Facilities, Research Facilities, in Counting Cap:

Per Country Ceiling for EB Immigrants:

Portability of H-1B Status:

Lengthy Adjudications and Relief:

Extension of Implementation of ACWIA Attestation and Investigation Law of 1998:

Recovery of Visas Used Fraudulently:

Sense of Congress to Prevent Backlogs:

Mandates Reports to Congress:

(Coursey of American Immigration Lawyers Association: The AILA summary is edited by this law firm and AILA is not responsible for the edited versions of summary)

* Visa Office (DOS) Policy on TCN(Third Country National) IV Consular Processing

 

*New I-485 Application Form (click here to download the form)

INS Explanation of Changes:

The Form I-485 was revised to incorporate significant statutory, regulatory and policy changes. A key revision enables young men between the ages of 18 and 25 years to register with the Selective Service System as of the date the application is filed and accepted by INS. Other changes in the form’s instructions include:

(1) an explanation on how travel outside the United States may adversely affect persons with pending adjustment applications, unless they are granted advance parole. Exceptions are noted for H and L nonimmigrants maintaining status who may travel on a valid H or L visa, and refugee and asylee adjustment applicants who may travel outside the United States on a valid refugee travel document, without the need to obtain advance parole.

(2) a warning that travel outside the United States may trigger the 3- or 10-year bar to admission under section 212(a)(9)(B)(i) of the Immigration and Nationality Act for some applicants with pending adjustment applications, if they were unlawfully present on or after April 1, 1997, in the United States for more than 180 days or more than a year, respectively, before applying for adjustment.

(3) an explanation that an applicant who becomes inadmissible because of unlawful presence while his or her adjustment application is pending will need a waiver under section 212(a)(9)(B)(v) of the Act before the adjustment application may be approved. The waiver requires a showing of extreme hardship to the applicant’s U.S. citizen or lawful permanent resident spouse or parent, unless the applicant is a refugee or asylee, in which case a waiver may be granted for humanitarian reasons, to assure family unity, or if it is otherwise in the public interest under section 209(c).

(4) information on when adjustment applicants should submit their required medical examination report when filing at an INS service center or field office; and that a K-1 fiancé(e) or K-2 dependent who has had a medical examination within the past year needs to submit only a vaccination supplement.

(5) information on the submission of the Affidavit of Support (I-864), if the adjustment is based on a fiancé(e) petition, family-based petition or an employment-based visa petition based on a business owned by a family member.

(6) an explanation concerning a required employment letter, if adjustment of status is based on an employment-based petition. The letter must be on the letterhead of the petitioning employer, confirming that the job noted in the petition is still available to the applicant, and stating the salary to be paid.

(7) information on how the principal applicant’s derivative spouse and children, whether in the United States or abroad, can file to adjust their status or immigrate to the United States, using Form I-485 or Form I-824, Application for Action on an Approved Application or Petition, respectively.

 

*Service Center's Initial EB-485 Filing Guidance: Each Service Center adopts different practices as follows:

NSC I-485 Filing Guidance: Order of papers in the filing package

Two-hole punched and fasten in fastener in the following order for each applicant "separately"

1. Check for 485 filing fees, stapled to the left hand corner of the first INS form submitted;

2. Blue form G-28 for 485 if represented;

3. Form I-485, with two color photos; photos in transparent envelope and stapled to the lower left corner of the I-485;

4. Form I-485A, if 245(i) case, with filing fee of $1,000,( plus G-28, if represented);

5. Form I-765, if applied with the NSC, with filing fees and two color photos (see above); (if represented, G-28 for I-765)

6. Form I-131, if applied with the NSC, with filing fees and two color photos (see above);(if represented, G-28 for I-131)

7. Form G-325A;

8. Medical Report, I-693, with a copy of INS designated Civil Surgeons list;

9. Documentation for maintenance of nonimmigrant status:

(a) Summary nonimmigrant history;

(b) Both sides of I-94

(c) I-20 or IAP-66, if applicable

(d) Back-to-back copy of passport

(e) Other evidence, such as the lastest paycheck, W-2, etc. in employment visa cases

10. IRS Form 9003 in duplicate;

11. Form I-797 (I-140 Approval Notice original)

12. Form I-134 Affidavit of Support, if dependent family member

13. Birth certificate or secondary evidence of birth (oldest documents and/or parents' affidavits)

14. Marriage/divorce records

15. Employer (I-140 petitioner) letter confirming that the terms of employment as specified in the underlying petition continue to exist.

16. Cover letter listing all the documents submitted and explaining other issues, if any.

(Phographs must be taken in strict compliance with the INS instructions)

(Separate check for each INS form is suggested: Make payable to "INS" and note file type and applicant name)

NSC Mailing Address:

If filed via U.S. Mail or U.S. Express Mail: Nebraska Service Center, P. O. 87485, Lincoln, Nebraska 68501-7485. If filed by other overnite delivery services: Nebraska Service Center, 850 "S" Street, Lincoln, Nebraska 68508.

Caveat: If filed by overnite delivery services, unless a bold "EB-485" is written on the envelopes of Fedex or UPS cover as well as inside envelope using a color magic marker, the file may be lost or misplaced or not handled properly. Very important!!

 

TSC 485 Filing Guidance: Order of putting papers separately for each family member

Two hole punched at the top and affixed with Acco fasteners with:

1. Orange Cover Sheet, stating in large print "Employment-Based I-485"

2. Check for I-485 filing fees, stapled to the first INS form filed (either G-28, if represented, or 485 if not represented)

3. I-485, with two color photos in a clear envelop and attached to the lower left cornver of I-485

4. I-485A, if applicable, with $1,000 check stapled, and G-28 if represented. Only 245(i) cases

5. I-765, if filed with TSC, with filing fees, two color photos (see above), and G-28 if represented

6. I-131, if filed with TSC, with filing fees, two color photos (see above), and G-28 if represented

7. Cover letter listing documents and a brief summary of the application

8. Approval Notice, I-797, of I-140, original

9. Employer letter attesting to applicant's continued employment

10. Evidence of maintaining nonimmigrant status (I-94, I-20 or IAP-66, paycheck, W-2 etc)

11. Photocopy of all pages of passport

12. Birth certificate or secondary evidence (oldest documents and/or parents' affidavits)

13. Marriage/divorce records

14. IRS Form 9003 in duplicate

15. I-131, if dependent, and personal financial documents

16. Medical report, I-693, and Civil Surgeon list

17. Form G-325A.

(Phographs must be taken in strict compliance with the INS instructions)

(Separate check for each INS form is suggested: Make payable to "INS" and note file type and applicant name)

Family groups should bundled together with a heavy rubber band to prevent separation during processing. Additionally, note on each cover sheet if the application is part of a family group along with the surname of the family.

TSC Filing Address:

If filed via U.S. Mail or U.S. Express Mail: Texas Service Center, P. O. Box 851804, Mesquite, TX 75185-1804. If filed via other overnite delivery services (Fedex, UPS, etc.): Texas Service Center, 4141 St. Augustine Rd.,Dallas, TX 75227

Caveat: If filed by overnite delivery services, unless a bold "EB-485" is written on the envelopes of Fedex or UPS cover as well as inside envelope using a color magic marker, the file may be lost or misplaced or not handled properly. Very important!!

Expired Visa and Nonimmigrants Travelling in Canada/Mexico and Adjacent Islands