Late last year, Congress took a surprising turn from a three year trend of making immigration more and more restrictive to pass the Nicaraguan Adjustment and Central American Relief Act (NACARA) which opens up immigration opportunities for thousands and thousands of immigrants in the US.
Signed into law November 19, 1997, NACARA has three major components – an amnesty program for Nicaraguans and Cubans, the return of pre-1996 Immigration Act suspension of deportation standards for certain Central Americans and East Europeans and a modification in the rules governing the 4,000 annual cap on cancellation of removal rules.
– Amnesty legislation
Any Nicaraguan or Cuban present in the US for a continuous period beginning on or before December 1, 1995 and who still is present in the US can apply to adjust status to permanent residency. Absences totaling less than 180 days will not be enough to interrupt the period of continuous stay required under the new law. The application for adjustment of status must be submitted prior to April 1, 2000.
Spouses, children under 21 and unmarried adult sons and daughters can apply for permanent residence through an eligible parent. Spouses and minor children do not have to meet the same residence requirements. Adult children, however, must meet the same physical presence requirement as the principal parent applicant.
One of the key requirements will be to demonstrate the period of continuous residence noted above. NACARA spells out what types of evidence can be offered to meet this test:
(i) an asylum application;
(ii) an order to show cause;
(iii) placement in exclusion proceedings;
(iv) an adjustment of status application;
(v) an application for an employment authorization document;
(vi) Social Security Administration records documenting the applicant has been employed in a trade or business;
(vii) an application for any other benefit under the Immigration and Nationality Act that would establish the alien’s presence in the United States prior to December 1, 1995; or
(viii) any other type of evidence the Attorney General may provide for regulation.
Persons who have already been ordered deported are now permitted to seek a stay of the deportation order. NACARA states that the INS is to write regulations setting out the procedures for issuing such a stay and as of yet, no such regulations have been issued. However, the INS is not expected to enforce deportation orders against people covered by the amnesty.
The INS may issue an employment authorization to an alien who has applied for adjustment of status under the amnesty if the application has not been approved after 180 days.
A number of the normal grounds for exclusion are inapplicable in amnesty cases. These include public charge rules and rules barring adjustment for those entering the without inspection.
INS decisions under the amnesty statute are final and cannot be reviewed by a court.
– Suspension of deportation rules
Under NACARA, certain individuals who are nationals of Guatemala, El Salvador and certain Eastern European countries can apply for suspension of deportation under pre-Illegal Immigration Reform and Immigrant Responsibility Act of 1996 rules.
The following persons are eligible for this form of relief:
1. Salvadoran nationals who came to the US on or before Sepetember 19, 1990 and who applied for benefits under American Baptist Churches, et al. v. Thornburgh (ABC) before October 31, 1991, or applied for temporary protected status on or before October 31, 1991;
2. A Guatemalan national who first entered the United States on or before October 1, 1990, and who registered for ABC benefits pursuant to such settlement agreement on or before December 31, 1991;
3. A Guatemalan or Salvadoran national who filed an application for asylum with the Immigration and Naturalization Service on or before April 1, 1990;
4. Persons who entered the US before December 31, 1990 who applied for asylum before December 31, 1991 who at the time of entering the US were nationals of the Soviet Union, Russia, any republic of the former Soviet Union, Latvia, Estonia, Lithuania, Poland, Czechoslovakia, Romania, Hungary, Bulgaria, Albania, East Germany,Yugoslavia, or any state of the former Yugoslavia.
5. Spouses and minor children of persons eligible in the above categories;
6. Adult children of the above individuals who have been in the US continuously since October 1, 1990.
Under the old suspension rules, a person in deportation proceedings could ask a judge to grant them permanent residency if they had been in the US continuously for seven years or more, had good moral character and there removal would cause extreme hardship to themselves, or to spouses, parents, or children who are citizens or lawful permanent residents. The new rules extend the period of continuous residence to ten years and the ten years must be met before an alien receives notice that they are in deportation proceedings (the requirement that the continuous residence requirement be met before receiving the deportation proceedings notice is now codified in NACARA). Also, the extreme hardship requirement is only met if the hardship is to a spouse, child or parent who is a US citizen or permanent resident. Hardship to the alien is not considered.
Persons who have received final orders of deportation or removal may now file motions to reopen their cases to apply for relief under the old suspension rules. Motions to reopen cases must be filed before September 11, 1998. The front page of the motions to reopen and the envelope should include the notation “Special NACARA Motion.” The normal $110 fee to file a motion to reopen is being waived for these cases.
If the applicant previously filed an application for suspension of deportation or cancellation of removal, a copy of that application should be submitted with the application. And if the new motion to reopen is granted, a new filing fee will not be owing. If an application for suspension or cancellation was not previously submitted, a new application (Form EOIR-40) should be submitted with the motion to reopen.
The annual 4,000 limit on the granting of cancellations of removal does not apply to NACARA cases. But to offset the visas that will be issued under this new statute, the number of visas in the unskilled worker permanent residency category and the diversity visa category will be reduced by up to 5,000 each beginning with the upcoming fiscal year.
– 4,000 Cap
As noted above, under the 1996 Immigration Act there is a cap of 4,000 on the number of cancellation of removal applications that may be granted annually. When the law went into effect, the number of approvals quickly reached 4,000. NACARA states that the 4,000 cap for the 1997 fiscal year should only be applied to cases decided after April 1, 1997. And any unused numbers from fiscal year 1997 are assigned to fiscal year 1998.
Disclaimer: This newsletter is provided as a public service and not intended to establish an attorney client relationship. Any reliance on information contained herein is taken at your own risk.