THE ABC'S OF IMMIGRATION - NEW IMMIGRATION PROVISIONS: NEW V VISA, AMNESTY LITIGATION RELIEF, NACARA (PART II OF DISCUSSION OF THE NEW “LIFE” BILL)
On December 21, 2000, the Legal Immigration Family Equity Act was signed into law. The new law makes numerous important changes in immigration law. Last week we discussed the temporary restoration of section 245(i) and the expansion of the use of K visas. This week we will discuss the other immigration provisions in the law, the new V visa, changes in the application of the Nicaraguan Adjustment and Central American Relief Act, and changes in the treatment of applications under the 1986 amnesty.
The LIFE Act creates a new visa category, the V visa. This visa will be used by spouses and children of permanent residents whose applications for immigration have been pending for at least three years.
To be eligible for a V visa, the applicant must be the beneficiary of an application for an immigrant relative that was filed on or before December 21, 2000. The petition must have been pending for three years at the time the V visa application is made. However, if the petition has been approved, the person can still obtain a V visa if the petition was filed more than three years ago and there is no immediately available immigrant visa, a pending application for an immigrant visa, or a pending application for adjustment of status. If the qualifying application is denied, the V visa status terminates 30 days after the date of the denial.
V visa holders will have employment authorization. Applicants for a V visa who are outside the US at the time of the application will not be subject to the three and ten year bars on reentering the US following a period of unlawful presence. Applicants who are in the US are likewise not subject to the bars, nor are they subject to two other grounds of inadmissibility, entering the US without inspection and entering the US without the proper documentary requirements.
V visa holders will be eligible to apply for adjustment of status when an immigrant visa becomes available. However, if after obtaining the V visa, the person ever falls out of valid status, they will not be allowed to apply for adjustment of status. The person must include a 00 penalty fee if they would be subject to the fee under section 245(i).
If a person is deported from the US and then reenters without INS permission, the order under which they were deported may be reinstated and the person deported again. Under prior INS interpretations of NACARA, a person who was deported, reentered, and had the deportation order reinstated was ineligible to apply for relief under NACARA. The LIFE Act changes this position and provides that a person who is otherwise eligible for NACARA relief “shall not be barred from applying for such relief” because of the reinstatement of a deportation order.
Late Amnesty Cases
In 1986, the Immigration Reform and Control Act (IRCA) granted amnesty to many undocumented immigrants who had been in the US continuously since 1982. The law did allow people who had been absent from the US for only “brief, casual and innocent” periods of time to apply for the amnesty. An INS interpretation of this provision resulted in applications from thousands of people being “front-desked” – the term used for applications that were not even accepted for processing. Many more people, hearing of this interpretation, did not even make applications.
Many lawsuits were filed challenging the INS interpretation, and the courts ruled that the INS interpretation was illegal and that it had to accept applications from people despite any brief absences from the US. These suit dragged on for years, and in 1996 Congress enacted a law that eliminated federal court jurisdiction over these cases. The LIFE Act will allow people who were eligible for the 1986 amnesty but were rejected because of INS error to seek adjustment of status to permanent resident.
To qualify for late legalization under LIFE, the applicant must show the following:
· On or before October 1, 2000 they filed a written claim for class membership in CSS v. Meese, LULAC v. Reno, or INS v. Zambrano;
· They entered the US before January 1, 1982 and resided continuously in the US in unlawful status from that point through May 4, 1988;
· They were continuously physically present in the US from November 6, 1986 through May 4, 1988 (brief, casual and innocent absences will not interrupt continuous physical presence);
· They filed an application for adjustment of status within one year of the issuance of the final regulations implementing the LIFE Act, which are to be issued within 120 days of the law’s enactment;
· They have not been convicted of a felony or of three misdemeanors, have not been involved in the persecution of another person on the basis of that person’s race, religion, nationality, political opinion, or membership in a particular social group;
· They are admissible to the US as an immigrant. Waivers of admissibility may be obtained for all grounds except those based on criminal status, drug offenses, security concerns and public charge grounds.
· They are able to pass the naturalization exam, or are currently engaged in a course of study that will give them the understanding of English and civics necessary to pass the exam.
In a statement included with the legislation, Sen. Edward Kennedy (D-MA) noted that while the law is limited to the three cases mentioned above, there are other cases that they were unaware of until too late to include in the law that are in the same position as the cases mentioned in the law. The statement encourages the government to find just resolutions for the plaintiffs in these cases. It also notes that there are many other class action lawsuits related to the 1986 amnesty. While these cases are different from the ones covered in the LIFE Act because they are not based on regulations the INS later admitted were illegal, it has been 15 years since the amnesty was passed, and the statement encourages both the plaintiffs and the government to reach a settlement in these cases.
Under the LIFE Act, late legalization applicants will, unlike the initial applicants under the Immigration Reform and Control Act who were granted temporary resident status before being allowed to seek full residence, be eligible to seek permanent residence directly. Once an application has been filed with the INS, the applicant is entitled to work authorization and permission to travel. They are also protected from deportation.
The law also directs the INS to come up with a plan for allowing people who are now eligible for legalization but are outside the US to apply for adjustment of status with the INS.
The LIFE Act prevents the application of section 377 of the Illegal Immigration Reform and Immigrant Responsibility Act, which eliminated federal court jurisdiction over many cases related to the 1986 amnesty, to new applicants.
Applications made under the LIFE Act will be confidential and cannot be used by the INS to initiate deportation proceedings. However, information submitted in the application can be used by the INS to revoke the grant of permanent residence.
Along with giving eligible people a chance to again seek the amnesty to which they were entitled 15 years ago, the LIFE Act expands the family reunification provisions that were enacted after the amnesty. Under these provisions, spouses and minor children of applicants for late legalization cannot be deported based on their unlawful presence, and they are to be given work authorization. To be eligible, the spouse or child must have entered the US before December 1, 1988, and must have not been convicted of a felony, three misdemeanors, engaged in persecution, or be a security risk. Spouses and children of applicants who are out of the country are to be paroled into the US so that they may receive the family reunification benefits.