SISKIND, SUSSER, HAAS & CHANG - Immigration and Nationality Law


NEW LAW EMERGENCY UPDATE

Updated 13 January 1998 (10:20 am central US time) -

13 January 1998 - The INS has stated that it will accept all visa petitions filed to meet the January 14th deadline at any local or regional office even if that office does not have the jurisdiction to handle that case. For example, an I-140 petition, which must normally be filed at one of the INS regional service centers, can be filed until tomorrow evening at a local INS office. All INS offices are supposed to stay open until midnight tomorrow night.

9 January 1998 - Just a reminder to readers that the 245i phase-out filing deadline is January 14th. There will be no extensions so make sure that applications are sent out via overnight mail and be sure to retain proof that it was sent on a timely basis and that the package requires a signature so you can prove it was received on time. Remember, many INS filing addresses are Post Office Boxes and only the Post Office's Express Mail can be delivered to post office boxes.

13 December 1997 - The INS has provided guidance on how the new 245i provisions are going to be implemented. We provide the full text of the memo here.

27 November 1997 - President Clinton signed into law the appropriations bill containing the 245i termination (or limited extension, depending on whether you view the glass as half full or half empty). We will keep this page up until the January 14th deadline for being covered by Section 245i. During this time, we plan on changing this page to basically be a resource center for immigration advocacy with information on new immigration laws and regulations as well as information on how people can contact members of Congress and agency officials to make their opinions known. For a final summary of the fate of Section 245i, please read the Visa Spotlight article in the upcoming issue of Siskind's Immigration Bulletin.

15 November 1997 - The deal reported two days ago has now been finalized by both Houses of Congress and is expected to be signed by the President. No changes were made since our last report. However, the President has indicated that he may not sign the bill for another week. This will, in effect, allow a little more time for persons not covered by the January 14th extended deadline (e.g. DV-98 winners).

13 November 1997 - Further details on the 245i compromise are now emerging as the time nears for final House action. The Congress appears prepared to allow a two month phase in that would allow any persons who have filed family or employment-based visa petitions and labor certifications to file for adjustment of status under Section 245i. The deadline is likely to be January 14, 1998 and should provide some relief to those who will be unable to file by this Friday. Whether a requisite family relationship for family petitions must be existing before Friday (the date the law will be enacted) or before January 14th is not yet known. Spouses and children of those able to apply under 245i would also apparently be covered, though, again, details are sketchy.

The Central American amnesty legislation has now worked its way through both Houses of Congress and is expected to be signed by the President soon. We'll provide analysis of this new law in the December issue of Siskind's Immigration Bulletin.

10 November 1997 - The INS issued the following memo today stating that it will accept 245i applications as well as skeletal immigrant petitions until Friday:

STATEMENT

Update on the Extension of Section 245(i) Adjustment of Status Section 245(i) of the Immigration and Nationality Act allows eligible aliens who have a current immigrant visa number available but who are unlawfully in the United States to remain and adjust their status on payment of a $1,000 penalty. This section of law is currently scheduled to terminate on Friday, November 14, 1997. However, as part of the FY-98 Commerce-Justice-State Appropriations Bill, Congress is considering an extension of eligibility of certain aliens.

Specifically, adjustment of status under Section 245(i) may continue to be available to aliens whose sponsors have filed an immigrant visa petition with INS, or a request for labor certification with the Department of Labor, by the date the appropriations bill is signed into law. This means that the filing of a visa petition or a request for labor certification may preserve an individual's eligibility to file for adjustment of status in the future.

Ordinarily, a visa petition must be filed in the location specified by the instructions on the form. However, to accommodate last-minute filings, INS is allowing immigrant visa petitions - as well as applications for Section 245(i) adjustment of status - to be filed at any INS District Office or Service Center through close of business Friday, November 14, 1997.

Question and Answers

Q: Will there be any further extensions of Section 245(i) after November 14?

A: It will depend on both the potential for any future continuing resolutions and on the final language of the Commerce-Justice-State Appropriations Bill.

Q: Does INS use visa petitions to find illegal aliens and deport them?

A: Generally, no, but there are certain circumstances where that might be done - for example, when the individual is already subject to a deportation order, has committed fraud, or has been convicted of crimes constituting a basis for deportation.

Q: Does the filing of a visa petition or labor certification shield the beneficiary from deportation or other INS enforcement actions?

A: No. A person unlawfully in the United States may be subject to removal. The mere filing of a visa petition does not create the right to remain in the United States.

10 November 1997 - While 245i has been continued until November 14th, the INS informally indicated today that it will only continue to accept 245i applications and skeletal immigrant visa applications through TODAY in district offices. No formal directive has been issued. Tomorrow is Veteran's Day and the INS will be closed. No word yet as to why applications will not be accepted Wednesday through Friday, though many expect that they will, in fact, continue to accept the them until the continuing resolution expires.

The American Immigration Lawyers Association has reported that the Senate has passed an appropriations bill that lumps the Commerce, State and Justice appropriations with two other bills. The House is expected to act sometime this week. AILA reports that the proposal both houses are reviewing would do the following:

- eliminates 245i except for "grandfathered" beneficiaries of visa petitions and labor certification applications filed by a certain date. Rumors are flying about the length of any such deadline, though figures of 30, 100 and 180 days have been circulating.

- persons with employment-based applications would be able to use the existing Section 245(a) adjustment of status rules if they have not been out of status for more than 180 days.

- Section 212(o) which requires persons who have status violations to remain outside the country for 90 day before being able to return would be eliminated (though such persons may still be subject to the much harsher 3 and 10 year bars).

10 November 1997 - After staying in town for a rare weekend session, Congress failed to pass an appropriations bill and, hence, no resolution of the 245i issue has been achieved. Consequently, another continuing resolution has been passed to continue 245i until the 14th of November. This is good news for two reasons:

1. This gives more time for 245i advocates to lobby the Conference Committee on the issue. The sudden shift in the committee against 245i took many pro-immigration advocates by surprise and this delay could help to ensure that those voices are heard. If you have not had the opportunity to register your support on the issue, please contact one of the Congress listed in the table below.

2. People who have not had the chance to file a skeletal filing pursuant to the INS memo immediately below now have a few more days to get their visa petitions submitted. Congress is expected to grandfather in persons who have pending visa applications (I-130s and I-140s (or labor certifications) filed even if they are not immediately eligible to adjust as long as the visa petition is filed before they pass the 245i bill.

08 November 1997 - Congress passed a two day extension on 245i in anticipation of the Conference Committee finishing its work. The committee has reportedly agreed to add in grandfathering language that would cover all those with filed labor certifications as well as visa petitions should the proposal to kill 245i succeed. It is likely that a final decision will come Sunday even though the fast track trade legislation is first on the agenda.

06 November 1997 - The temporary extension of Section 245i is set to expire today. The Conference Committee has yet to decide on extending 245i permanently (more on that below) and the INS has sent out an emergency bulletin stating the following:

This memorandum is intended to provide further guidance and information on section
245(i) filings, and on procedures that must be observed on Friday, November 7,
1997. Our previous guidance advised all field offices to remain open until midnight on
November 7, for the purposes of receiving I-485 adjustment of status applications.
Those instructions remain in effect.

We have received information indicating that our budget could contain language
terminating or substantially modifying section 245(i). It now appears that Congress may
provide a grandfather clause for those alien beneficiaries for whom a visa petition has
been filed by the date of enactment. This means that the mere filing of a visa petition
could protect a beneficiary’s eligibility to file for adjustment of status pursuant to section
245(i). This is so even if the beneficiary does not become eligible to file for adjustment
until some time in the future due to unavailability of a visa number. Because of this, all
offices are to accept immigrant visa petitions filed with the requisite fee and petitioner’s
signature until midnight November 7. It is important to note that the grandfather clause
does not permit an individual to overcome unavailability of a visa number, but is does
preserve eligibility to file pursuant to section 245(i) when a visa number becomes
available. Offices should not reject a petition simply because all documentation needed
for adjustment is not present at the time of filing.

District offices which do not normally receive visa petitions unaccompanied by
adjustment applications will accept the petitions, stamp the petition with the date of the
receipt, then forward it with the remittance to the appropriate service center. Service
centers must ensure that all mail received on November 7, and all petitions relocated
from district offices are properly receipted for November 7. Service centers must also
identify for receipting any immigrant visa petitions received on Saturday, November 8.

Further instructions will be forthcoming as additional information is received.

Basically, this is saying that the INS will allow for skeletal filings of visa petitions to preserve a person's place in line for purposes of later filing a Section 245i application. The INS has not made it clear what needs to be in the application, but if you are preparing an application now and it is not yet complete, go ahead and file it TODAY even if it is not complete. You can send everything else in later. While the INS might normally reject an incomplete application, they appear to be temporarily loosening up their standard due to the extraordinary circumstances.

As for the political question, the roller coaster political ride on 245i does not appear to be over. When last we reported to our readers, 245i's extension, at least a temporary extension for a year or more, seemed very likely. Now the situation may have completely reversed. It appears that 245i is again in serious danger of being eliminated. An agreement has been proposed by several conference committee members which would have the following impact:

According to the American Immigration Lawyers Association, committee members are bogged down in amendments and are unlikely to finish today. The conferees may meet over the weekend to resolve all issues.

THIS MAY BE YOUR LAST CHANCE TO CONTACT CONFERENCE MEMBERS ON THIS ISSUE. IF YOU ARE IN A CONFEREES DISTRICT, PLEASE CONTACT THEM IMMEDIATELY LETTING THEM KNOW YOU ARE IN FAVOR OF A PERMANENT EXTENSION OF SECTION 245i IN ITS CURRENT FORM. CLICK HERE TO SEE THE LIST OF CONFEREES.

29 Oct - Congressman Rohrbacher's attempt to defeat Section 245i in a separate House vote failed this afternoon by a wide margin (153 - 268). The measure was actually a motion to instruct conferees on the part of the House to insist on the House disagreement with Sec. 111 of the Senate amendment, which would provide for a permanent extension of Sec. 245(i) of the Immigration and Nationality Act. This is great news for those favoring Section 245i's extension since this vote was, in essence, a "sense of the house" on this issue. The odds of Section 245i being permanently extended must now surely be seen as quite good.

23 Oct - The Senate today approved an extention of Section 245i until November 7th. The President is expected to sign tonight.

23 Oct - The INS has issued the new Affidavit of Support regulations and the new I-864 Affidavit of Support form called for under the new immigrtaion law. The form can now be downloaded from the SSHC Forms Center. The regulations can be found in the SSHC Documents collection. An analysis of the new regulations will be included in the November Siskind's Immigration Bulletin.

23 Oct - The American Immigration Lawyers Association released the following announcement regarding 245i today:

Rep. Dana Rohrabacher (R-CA), an opponent of 245(i), announced that he will be given a separate vote on 245(i) on the House floor next Wednesday. Accordingly, YOUR ACTION IS CRITICAL BEFORE NEXT WEDNESDAY! Please call the Congressional switchboard at (202) 224-3121 to reach House leadership (Reps. Gingrich and Armey) and your own member and ask for their commitment to a permanent extension of 245(i). This issue shortly will be settled by leadership or by House/Senate conferees on the Commerce/State/Justice appropriations bill. A negative House floor vote on Wednesday would adversely affect final outcome.

Continuing Resolution on Government Spending Contains Temporary Extension of 245(i): Congress has passed a two-week continuing spending resolution that temporarily extends 245(i) until November 7, 1997. Again, the final fate of 245(i) awaits leadership or conferee action on the CSJ appropriations bill.

22 Oct - The United States House of Representatives today passed a two week extension of Section 245i as part of a package to keep the government funded until November 7, 1997. The Senate is expected to pass a similar measure tomorrow and the President should sign shortly after that.

19 Oct - According to the American Immigration Lawyers Association, the House Rules Committee will be meeting late Tuesday afternoon, October 21, to consider a continuing resolution (CR) to fund the government for an additional three weeks. AILA has told its members that the discussions will include a review of Section 245(i). They expect that the continuing resolution will make it to the House floor on Thursday, October 23, and at that time Representative Dana Rohrabacher will introduce an amendment to strip Section 245(i) from the CR. AILA is urging people to call their members of Congress and Speaker Newt Gingrich (202-225-4501) and urge them to support Section 245(i). If you live in Texas, call Majority Leader Dick Armey (202-225-7772) as well. If you live in New York, call your member of Congress, Speaker Gingrich, and Representative Gerald Solomon (202-225-5614). The general Congressional Switchboard number (to reach your Member of Congress) is 202-225-3121.

14 Oct - While there has been no serious breakthrough since last we reported on new law developments, there is news. The House passed the 245i-less budget bill on September 30th by a measure of 227-199. Now the House bill (without a 245i extension) and the Senate bill (with a permanent 245i extension) must be reconciled by a conference committee composed of members of both the Senate and the House. The members of that committee have also been appointed. Below we provide a list of the conference members as well as information on how to contact them. Readers are urged to call their representatives, particularly if they are on the conference committee and urge them to support the permanent extension of Section 245i.

Representative Party-State Phone #(202-) Fax #(202-) E-Mail
Julian C. Dixon D-CA 225-7084 225-4091  
Michael P. Forbes R-NY 225-3826 225-3143 mpforbes@hr.house.gov
Jim Kolbe R-AZ 225-2542 225-0378 jimkolbe@hr.house.gov
Tom Latham R-IA 225-5476 225-3301 latham@hr.house.gov
Bob Livingston R-LA 225-3015 225-0739  
Alan B. Mollohan D-WV 225-4172 225-7564  
David R. Obey D-WI 225-3365 225-3240  
Ralph Regula R-OH 225-3876 225-3059  
Harold Rogers R-KY 225-4601 225-0940  
David E. Skaggs D-CO 225-2161 226-3806 skaggs@hr.house.gov
Charles H. Taylor R-NC 225-6401 226-6405 chtaylor@hr.house.gov


Senator Party-State Phone # Fax # E-Mail
Dale Bumpers D-AR 224-4843 224-6435 senator@bumpers.senate.gov
Robert C. Byrd D-WV 224-3954 228-0002 senator_byrd@byrd.senate.gov
Ben Campbell R-CO 224-5852 224-1933  
Thad Cochran R-MS 224-5054 224-9450 senator@cochran.senate.gov
Pete V. Domenici R-NM 224-6621 224-7371 senator_domenici@domenici.senate.gov
Judd Gregg R-NH 224-3324 224-4952 mailbox@gregg.senate.gov
Ernest F. Hollings D-SC 224-6121 224-4293 senator@hollings.senate.gov
Kay Bailey Hutchison R-TX 224-5922 224-0776 senator@hutchison.senate.gov
Daniel K. Inouye D-HI 224-3934 224-8022 senator@inouye.senate.gov
Frank R. Lautenberg D-NJ 224-4744 224-9707 frank_lautenberg@lautenberg.senate.gov
Mitch McConnell R-KY 224-2541 224-2499 senator@mcconnell.senate.gov
Barbara A. Mikulski D-MD 224-4654 224-8858 senator@mikulski.senate.gov
Ted Stevens R-AK 224-3004 224-2354  

In other news, the Senate has approved Senator Mack's Central American "Amnesty" provision. The bill has gained this label even though it is not a blanket amnesty. The bill allows certain Salvordorans, Niceraguans and Guatemalans who entered the US before October 1, 1990 to apply for relief from deportation if they have been here for between seven and ten years, have no criminal record or serious moral transgressions and their deportation would result in extrme hardship to the alien or to his or her citizen or permanent resident spouse, parent or child. The Mack bill has been attached to the budget bill providing funding to the District of Columbia. Like Section 245i, this bill must be reconciled at the conference committee level since a similar provision is not in the house version of the bill.

30 Sept - The Senate passed by a margin of 99-0 a measure to continue funding programs covered by the Commerce, State and Justice budget bill. President Clinton is expected to sign the measure tonight.

29 Sept - The House passed by a margin of 355-57 a measure to continue funding programs covered by the Commerce, State and Justice budget bill. The bill will allow Section 245i to continue until October 23rd. The Senate is exptected to approve a similar measure tomorrow.

27 Sept - Pro-immigration members of the House of Representative were successful in securing the three week extension of Section 245i we reported yesterday. A spokesman for the House Appropriations Committee confirmed this fact last night. House Majority Leader Richard Gephart (whose record on immigration issues has been spotty) surprised many pro-immigration advocates by forcefully calling yesterday for the extension of Section 245i. As we noted yesterday, this three week extension will not make much of a difference for most people who were forced to make the decision to stay or leave. Only those persons who would be eligible to apply for adjustment of status in the first three weeks of October would benefit.

26 Sept - Now that it has become apparent that the Congress will be unable to pass the budget bill necessary to keep the sections of the government operating covered by the bill past September 30th, the House is considering a Continuing Resolution that would temporarily continue all operations for three weeks. Section 245i MAY be covered, but this is not yet clear. Anti-245i Congressmen are pushing to allow the Continuing Resolution to be amended so that certain items are not continued. They would strip out 245i from the continuing resolution. The House Rules Committee is expected to make a decision on this matter today. If the continuing resolution is kept "clean" it is extremely likely to make it through the legislative process.

So what does this mean for people needing 245i? Unfortunately, this extension only helps a small group of people - just those who would become eligible to apply for adjustment of status to permanent residency during the three week extension. DV-98 lottery winners and those with priority dates that become current October 1st will be the main winners from a three week extension.

This temporary reprieve will not, however, affect most people needing to decide whether or not to stay in the US. That's because if 245i is not extended beyond three weeks, people who chose to stay would then become subject to the three year bar kicking in at midnight tomorrow. Congress is NOT considering an extension of the start date for the three and ten year bars and this is what would also be necessary to help most people.

Prior to today’s news about a possible continuing resolution, INS Field Operations issued a memorandum to its district offices and Service Centers to permit the receipt of 245(i) adjustment applications until midnight on September 30th. Applications will be considered to be filed on time if they have been received by midnight on September 30th. It is likely that INS will update these instructions if there is an extension via a continuing resolution.

25 Sept - The House continued debating the budget bill today, but did not consider any amendments related to Section 245i.

24 Sept - The House is beginning debate on the budget bill that will potentially have an extension of 245i, but don't expect any news now until the conference committee. The word is that there is not enough confidence in passage to try and get 245i added in on the house floor. Also, I have posted Form G-146 on our site in an Acrobat format for those who need it.

The Texas Service Center has released guidelines for amending applications before September 30th for cases needing to switch to 245i. I-485 Supplements filed separately with the Texas Service Center should be sent with bright colored cover sheet indicating the Supplement is being filed to go with a previously filed I-485 and should include a copy of the I-485 Receipt Notice. Marking the outside of the envelope regarding the contents also probably would be helpful.

23 Sept - The INS yesterday issued a memorandum to all of its offices providing further instructions regarding the impending expiration of Section 245i of the Immigration and Nationality Act. The INS reiterated its policy to allow applications to be filed under Section 245i up until September 30th, the date the provision expires. This is so even though the applications will not be completed before that date. However, if a person later wishes to amend a filed application to pay the penalty fee under Section 245i, the INS WILL NOT accept the petition. In cases where the 245i penalty should be paid, the INS has advised its field offices to immediately advise applicants to amend applications before September 30th. Also, until September 30th, battered spouse petitioners can now file an I-360 application together with an I-485 application and the $1000 surcharge (normally, the I-360 must be approved first). The INS also stated that persons in E-1, E-2, H-1B or L-1 nonimmigrant status who have adjustment of status applications pending must have an advance parole document in order to reenter the country. Otherwise, their applications will be considered abandoned. This could be very important if a person is subject to the new three and ten year bars if they are not able to reenter the country.

In other news this past day, the INS issued a press release indicating that it does not intend to engage in "mass deportations" after the double deadlines pass this coming week.

Even as the September 27th deadline for the new three and ten year bars looms, Section 245i of the Immigration and Nationality Act still has not been extended by Congress past its September 30th expiration date. The Senate has approved its extension as part of a budget bill, but the House has not included its extension in its version of the same budget bill. The House was expected to approve the bill last week without 245i or vote on a resolution to temporarily continue it. Unfortunately, neither happened. One cause for the delay may be a controversial provision in the budget bill related to the US Census (not relating to immigration) that threatens to delay a vote. The House is expected to take up the measure on Wednesday morning. As news on this issue arrives, we will update this page. However, we strongly recommend considering leaving the country before September 27th in order to avoid the three and ten year bars if 245i is not extended in time.

In other related developments, the INS today issued a new more liberal interpretation of the term "unlawful presence" that may make some people reconsider leaving the US. The INS reversed an earlier stated position and now considers time spent in "voluntary departure" status to be lawful for purposes of triggering the three and ten year bars. Note that if an immigration judge grants a person voluntary departure with an alternate order of removal, and the person fails to depart by the date specified, unlawful presencewill accrue as of the date the voluntary departure expires and the order of removal takes effect.

The INS also states in the same memo that for nonimmigrant visa holders, the period of unlawful presence "includes only periods of stay in the United States beyond the date noted on an I-94" and not violations of status. The two exceptions would be 1) when an immigration judge holds that there has been a status violation (the period of unlawful presence would accrue as of the date of the judge's order) and 2) when the INS finds a status violation when deciding on another application (the unlawful presence begins on the date of the decision denying benefit).

We include here the complete text of the new memo.

For more information on the new law, please read Paul Parson's excellent article in the September issue of Siskind's Immigration Bulletin..

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