1. Improved Border and Interior Enforcement
2. New Provisions to Fight Alien Smuggling and Document Fraud
3. Overhauling of the Procedures for Removing Aliens
4. New Criminal Alien Laws
5. New Grounds for Exclusion and Deportation
6. Limits on Litigation
7. Legal Immigration Provisions
8. New Sections Governing the Restriction Against Employment of Unauthorized Workers and Discrimination by Employers Against Immigrants
9. Refugees, parole and asylum
10. Provisions affecting F-1 Students and J-1 Exchange Visitors
11. Physicians provisions
12. Consular processing provisions
13. Visa Waiver Program revisions
14. Green Card Lottery Provisions
15. Female Genital Mutilation Provisions
16. “Mail Order Bride” provisions
On September 30, 1996, President Clinton signed the Illegal Immigrant Reform and Immigrant Responsibility Act of 1996 (“IIRIRA 96”). The new law represents the completion of a legislative process which began shortly after the Republican Party assumed majority party status in the House and Senate after the 1994 mid-term elections. Originally, there were two sets of immigration bills in each house of Congress – one covering illegal immigration and one covering legal immigration. The legal immigration bill would have drastically slashed the number of family and employment immigrants permitted into the US. The illegal immigration bill primarily covered border enforcement and deportation. The bills were later combined in each house only to be split again after a heated grass roots lobbying effort. The logic behind combining the bills was that the more controversial legal immigration bill would have an easier time passing of tied to the much more popular illegal immigration bill. Finally, the legal immigration bills in each house were defeated, though a number of provisions affecting legal immigration ended up in the illegal immigration bill. After numerous delays including a threatened Senate filibuster and presidential veto over the issue of barring illegal immigrant children access to public schools, the bill was bundled with a crucial budget bill needed to prevent a shutdown of the government. Last minute compromises were worked out over some of the most controversial provisions including deleting the provisions affecting school children and the bill became law.
Though the legal immigration bill was largely destroyed, the final piece of legislation is still vast (more than 200 pages!). It is divided into six broad sections:
- Title I – Improvements to Border Control, Facilitation of Legal Entry and Interior Enforcement
- Title II – Enhanced Enforcement and Penalties Against Alien Smuggling; Document Fraud
- Title III – Inspection, Apprehension, Detention, Adjudication, And Removal Of Inadmissible And Deportable Aliens
- Title IV – Enforcement of Restrictions Against Employment
- Title V – Restrictions On Benefits For Aliens
- Title VI – Miscellaneous Provisions
This essay provides an overview of the major subjects covered by the new bill. A section-by-section summary will also be made available at our web site shortly.
IIRIRA 96 first addresses the broad subject of gaining control of the country’s border control, perhaps the most popular section of the new bill. The most immediate impact of the new bill will be a dramatic increase in the number of Border Patrol agents. 5,000 new agents will be added over the next five years. $12 million dollars has been allocated for a 14-mile triple fence along the US border from San Diego eastward. The INS will be able acquire state-of-the-art equipment including aircraft, helicopters, night vision goggles and four-wheel-drive vehicles. The penalties for illegally crossing into the US are dramatically increased. Aliens are subject to fines up to $250 for attempted illegal entries after April 1, 1997.iv Aliens attempting to evade a law enforcement checkpoint at high speed are now subject to imprisonment for up to five years and are deportable if convicted of such an offense.
Entry and exit from the US will become more controlled as a result of the new legislation. New border crossing identification cards must be issued and put in use before the year 2000.vi The new cards will have “biometric identifiers” such as fingerprints or handprints that match the alien. The Attorney General is also charged with developing an automated entry-exit control system within two years. The new system will be used for collecting information on the number of departures, the number of departures successfully matched to records of an alien’s entry to the US and the number of aliens who arrived as nonimmigrants for whom no departure records were found. New preinspection stations will be set up in at least five of the foreign airports sending the greatest number of inadmissible aliens to the US.
The INS’ internal enforcement efforts will also be stepped up as a result of IIRIRA 96. The INS is authorized to hire 300 additional personnel for the next three years to investigate alien smuggling and the unlawful employment of aliens. For the next year, the INS is authorized to hire an additional 300 investigators targeting visa overstayers. The number of INS officials in each state must be at least ten by October of next year. And the Attorney General will be allowed to also enter into agreements with states allowing state officials to carry out investigations, apprehension and detention of aliens. Such state officials are required to be trained in the enforcement of federal laws.
The new immigration law adds a variety of new provisions aimed at curbing alien smuggling and document fraud. A variety of variations on these types of offenses are added to the list of suspected crimes which may justify granting of wiretap authority. Congress has also added to the list of federal racketeering (“RICO”) a number of immigration-related offenses including procurement of citizenship or nationality unlawfully, reproduction of naturalization or citizenship papers and the sale of naturalization or citizenship papers. And there are increased penalties which are to be imposed on criminals convicted of alien smuggling. To match this provision, the number of authorized Assistant US Attorneys charged with investigating alien smuggling is to be increased by 25.
The entire systems of exclusion and deportation have been reformed under Title III of IIRIRA 96. The most talked about provisions in this new section are the 3 and 10 year bars to admissibility for aliens “unlawfully present” in the US (those entering the US without any inspection or who overstay a nonimmigrant visa). Those who are unlawfully present in the US for 180 days but less than a year are barred from being admitted in any legal status in the US for a three year period. Those who are unlawfully present in the US for more than a year are barred from being admitted in any legal status for ten years. Whether this means that only persons who have departed and are seeking to be readmitted to the US are covered or whether it covers persons already in the US is a point that is currently being debated. The following periods of time are exempt:
- while a person is under 18 years of age
- while a person has a bona fide asylum application pending (unless the person is unlawfully employed during this time)
- periods when a person is the beneficiary of a family unity petition.
Battered women and children are exempt from the bar and there is a waiver available for the spouses or children of US citizens and permanent residents if the bar would result in extreme hardship to the citizen or permanent resident. Persons who have timely filed for a change or extension of nonimmigrant status will not have the waiting period counted toward the bar until after 120 days.
There are no avenues for appealing the INS’ decision on a ruling on these new bars to admissibility. There is, however, a phase-in period for the implementation of the bar. First, the effective date of this section of the new law is April 1, 1997 (though some government officials are reportedly applying the rule already (in what appears to be a clear violation of the law).xxv Second, no time in which an alien is unlawfully present before April 1, 1997 will be counted toward the bar.
Another controversial change in immigration procedures is the new summary screening program which allows an INS officer to unilaterally rule that an alien is inadmissible to the US and can be removed without any judicial oversight. The expedited procedure applies to aliens arriving at a port of entry as well as aliens who are not able to demonstrate that they have been continuously present in the US for the two preceding years. The only exception to this rule would be for an alien who expresses an intention to apply for asylum. In those cases, an asylum officer will then conduct a “credible fear of persecution” screening to determine if an asylum applicant shall be permitted to be admitted into the US. If the asylum officer determines there is no credible fear of persecution, the alien will be ordered removed. In this case, however, an alien is entitled to judicial review. Remarkably, given the current backlog in the immigration courts, a court hearing is supposed to take place within 24 hours of denial and in no case more than seven days later.
Title III also outlines the new “removal” proceedings that replace the current “deportation” judicial process. A key change is the elimination of “suspension of deportation” relief which allows aliens to adjust to permanent residency if they have been in the US for seven years, have no criminal history and there deportation would cause an extreme hardship to a US citizen or permanent resident immediate relative. Suspension of deportation is replaced by a new remedy called “cancellation of removal” that is very similar but differentiates between the treatment of green card holders in removal proceedings and nonimmigrant aliens. Green card holders are eligible for relief from removal if they have had their green card for at least five years, they have resided continuously in the US for seven years after being approved for permanent residency and they have not been convicted of any felony. Cancellation of removal is available to certain nonimmigrants that have been physically present in the US for 10 years, that have been persons of good moral character during this period, have not been convicted of certain serious crimes and who can show that extreme hardship would result for a US citizen or permanent resident spouse, parent, or child. Only 4,000 cancellations of removal may be granted in a single fiscal year.
Title III also imposes new rules for “voluntary departure,” the remedy that allows someone to leave the US on their own accord in order to avoid being deported and facing bars on being readmitted to the US. To be granted voluntary departure, an applicant must meet the following test:
- the applicant has been physically present in the US for at least one year before being served a notice
- has been a person of good moral character for at least five years
- the alien is not deportable on certain specific grounds
- the alien has the means to depart the US and intends to do so.1
A common feature in the new law is the elimination of many previously available avenues for judicial review of INS actions. The new law spells out the cases not subject to review and sets out rules for the few cases where appeals are still possible.
IIRIRA 96 adds a number of new crimes to the list of those which subject an alien to deportation. A number of new crimes from the new Anti-Terrorism law are added and the threshold for fines and sentences triggering deportation are, in many cases, lowered. The INS is also authorized to develop demonstration projects to make it easier to identify inmates subject to deportation and to require aliens on probation or parole to register with INS. States are also now eligible for new funds as reimbursement for the incarceration of criminal aliens. And prior to October 1, 1997, the Attorney General must submit a report to Congress detailing the number of illegal aliens in American prisons for felony convictions and listing the number of incarcerated prisoners for each type of crime.
There are several new grounds for exclusion that have been included in the new law. Effective immediately, those seeking to enter the US as permanent residents must present proof of having received vaccination against a number of diseases including measles, polio and Hepatitis B. Those inciting terrorist activities, falsely claiming US citizenship, those unlawfully voting and those convicted of domestic violence and stalking are all considered excludable. There are also provisions making certain student visas excludable (see the section below on changes affecting students).
Throughout IIRIRA, there are new provisions which prevent individuals or classes of persons from either suing the government or appealing INS or lower court decisions. The following are some examples:
- No court can accept jurisdiction in most cases where person assert an interest under legalization provisions in the Immigration and Nationality Act
Though most of the focus of IIRIRA is on illegal immigrants, there are a number of sections which will have an impact on legal immigration. We have already discussed the new grounds for exclusion for failure to have proper vaccinations. That will result in aliens having to get various vaccination shots and submit appropriate documentation as part of adjustment of status and consular processing applications for permanent residency visas.
Current law allows persons who are or have been out of status in the US to adjust to permanent residency if the applicant pays a penalty fee of five times the normal fee for adjusting status. That now amounts to $650. Section 376 of IIRIRA 96 increases the penalty fee to a flat $1000. This provision is effective on December 29, 1996, so are advised to file soon if you are affected by this provision.
Another area in the bill which will impact legal immigration are provisions relating to the exclusion of individuals deemed likely to become a public charge. The law clarifies that consular officers may deny immigrant visas to persons deemed likely to become a public charge by considering factors such as age, health, family status, financial resources, education and skills. An affidavit of support can also be considered as a factor.
- The current rules surrounding Affidavits of Support are also substantially changed by the new legislation. Among the changes are the following:
- Affidavits of Support are now legally enforceable against the sponsor. The affidavit is enforceable until the alien becomes a citizen or until the alien has worked for ten years.
- Affidavit of Support sponsors must notify the nearest INS local office within 30 days of a change of address while the Affidavit of Support is enforceable
- Sponsors must be adult US citizens or permanent residents.
- Sponsors must be the actual petitioner or a co-signer with the petitioner
- Sponsors must earn at least 125% of the poverty income level (based on US Department of Health and Human Service Guidelines) for a family the size of the sponsor’s family PLUS the alien’s family. Active duty US military officers only need to earn 100% of the poverty level.
- Affidavits of Support most be accompanied by a certified federal income tax return for the three previous years and evidence of the ownership of assets.
- Sponsors must provide a social security number which will be entered into a database.
- Fines for violating the new rules range from $250 to $5000.
The new Affidavit of Support rules will go into effect 60 to 90 days after the new Affidavit of Support form is released (which must occur before the end of 1996).
IIRIRA 96 does offer some relief to battered spouses and children. The recently-passed Welfare Bill requires that a sponsor’s income be considered as part of the alien’s for purposes of qualifying for public assistance (“deeming”). If a spouse or child is battered or subject to extreme cruelty by a spouse, parent or other relatives in the same household,, if the alien has moved out of the batterer’s household, then after a one year period, deeming will be deferred for a one year period if the alien would, in the absence of public assistance, be unable to obtain food and shelter. The abuse must also be connected to the need for assistance.
A small number of aliens will now be allowed to adjust to permanent residency, after previously being ineligible. Polish and Hungarian nationals paroled into the US between November 1, 1989 and December 31, 1991 after being denied refugee status are now eligible for green cards if they have been physically present in the US for at least a year and are otherwise eligible for permanent residency. Polish winners of the 1995 DV-1 Green Card Lottery who were denied adjustment because of a short of visas are eligible to adjust to permanent residency as long as their applications are processed before October 1, 1997. The number of visas issued under this provision will be counted against the lottery visas allotment for this fiscal year.
The rules created in 1986 under the Immigration Reform and Control Act (“IRCA”) have been affected by the new legislation. The Attorney General is charged with creating three pilot programs for employment eligibility verification. They are the following:
- A “basic” program 5 or 7 states with the most illegal aliens that simplifies the I-9 employment verification procedures
- A “citizen attestation pilot program” in at least five states that simplifies I-9 procedures and allows the employer the option of requesting citizenship documentation when an employee attests to being a US citizen (as opposed to mandating the review of employment verification documents).
- An “employee eligibility confirmation system” that uses a toll-free telephone or electronic communication to verify identity or employment eligibility verification.
The new law also provides for an exemption from liability for employers who have made a “good faith attempt” to comply with the verification requirements. Also, the number of documents that may be used for work verification is reduced.
One of the most controversial sections in the new law is related to this subject. Section 421 of IIRIRA amends the current law barring unfair immigration-related employment practices by now requiring a showing that an employer INTENDED to discriminate when the employer asked for more or different documents than required for work authorization verification.
There are a number of new rules affecting the refugee and asylum programs. Congress has created a new category for persecution claims for persons forced to abort a pregnancy or to be sterilized or who are persecuted for refusing to undergo such a procedure. Up to a 1,000 claims per year may be approved for this category of persons.
The rules for applying for asylum, however, are made even more difficult under the new law. Among the highlights:
- Aliens who may be removed to a third country where their freedom will not be threatened and where the alien would have access to a fair asylum procedure are not permitted to apply for asylum in the US.
- Aliens must apply for asylum within the first year of entering the US.
- Aliens are not allowed to reapply for asylum after being previously denied unless the applicant can show changed circumstances
- There are new categories of persons who will be denied asylum including certain convicted criminals and those who have participated in the persecution of others.
- Aliens may be required to submit fingerprints and photographs
- Application fees for asylum applications are now authorized
- Aliens who file frivolous asylum applications will be permanently barred from becoming US immigrants.
There are a few provisions that should lead to faster processing of asylum claims. Initial hearings on asylum claims are to take place within 45 days of filing and final adjudications are to take place within six months. Appeals must be filed within 45 days. These tighter deadlines will be coupled with an increase in the number of asylum officer by 600 over the next year.
The humanitarian parole program is also altered. Previously, the standard was to grant humanitarian parole “for emergent reasons or for reasons deemed strictly in the public interest.” The new standard is replaced by language allowing parole “only on a case-by-case basis for urgent humanitarian reasons or significant public benefit.” Parolee still in the US after a year will now be counted against the annual immigration limit, though they will not be counted a second time when they later receive permanent residency.
As noted earlier, there are now new procedures for aliens claiming asylum at the time of entering the US. If an alien expresses an intention to apply for asylum, an asylum officer will conduct a “credible fear of persecution” screening to determine if an asylum applicant shall be permitted to be admitted into the US. If the asylum officer determines there is no credible fear of persecution, the alien will be ordered removed. In this case, however, an alien is entitled to judicial review. A court hearing is supposed to take place within 24 hours of denial and in no case more than seven days later.
Among provisions affecting students is a new ground for exclusion for certain “student visa abusers.” Under Section 346 and 625 of IIRIRA 96, students are inadmissible if they seek to attend a public elementary or adult education program (not a college or university program). They are also inadmissible if they seek to attend a secondary school for more than one year and if they will not be reimbursing the local school district for the full, unsubsidized per capita cost of the alien’s school attendance. This provision is effective November 29, 1996.
Those who enter the US on an F-1 visa to attend a private elementary, secondary, or language school and who then leave that school to attend a public education program are removable unless the 12 month limit and the tuition reimbursement requirements mentioned above are met. This provision is effective November 29, 1996.
F-1 and M-1 Schools and Universities and J-1 Exchange Visitor Program Sponsors are now required to collect information relating to F-1 student visa holders and J-1 exchange visitor program participants. The INS is charged with developing a program by the end of next year to collect information relating to these university attendees who are from five designated countries (not yet determined). Information to reported on applicable aliens includes: The identification and address of the alien
- The visa status, date visa was issued, extended or status change approved
- For F-1s, current academic status of alien
- For J-1s, whether alien is complying with terms of the exchange visitor program
- Information regarding the alien’s being convicted of a crime that leads to disciplinary action.
The information is to be collected electronically, if possible. Those institutions that fail to provide the required information will be barred from sponsoring F, M, or J visas.
Beginning on April 1, 1997, the INS may require F, M and J visa sponsors to collect fees (up to $100) from the affected aliens.
There are additional changes affecting J-1 physicians. For a detailed description, see the section below on that subject.
In addition to the more general provisions covering J-1 visa applicants described in the previous section, there are a number of new provisions governing waivers of the J-1 2-year home residency requirement to which all clinical physicians entering the US in J-1 visa status are subject.
The Conrad 20 program allowing each State to sponsor up to twenty J-1 foreign medical graduates per year for a waiver of the home residency requirement if the physician intends to serve in a physician shortage area has been extended until the year 2002.
The new law also extends the conditions of the Conrad 20 program to all federally-sponsored physician waiver programs including: requiring no objection letter from a home country government if an alien is contractually obligated to the government of such country
- the alien has a bona fide offer from a health care facility and the alien agrees to begin working for the facility within 90 days of receiving the waiver, and
- the alien agrees to work for three years for the facility.
Those failing to meet the above-listed terms will be barred from switching to any legal immigration status unless the two year residency requirement is satisfied.
Finally, one completely new provision that will no doubt affect the plans of many is a new requirement that a physician work for three years in H-1B visa status before being able to switch into permanent residency.
Congress has included a number of provisions in IIRIRA that will have a substantial impact on those processing nonimmigrant and immigrant visas at US consulates around the world.
Those seeking to enter the US as permanent residents will now have six months instead of four to enter the US after permanent residency is approved by the consulate.
Consulates will be able to apply reciprocity rules for the validity periods of non-immigrant visas in the case of refugees and permanent residents in reciprocating countries.
A provision that will dramatically alter the status quo is the elimination of “consulate shopping” for persons who have overstayed their visas in the US. For many years, visa overstayers, who are ineligible to process nonimmigrant visa applications in the US, have frequently attempted to get back into legal status by submitting visa applications to US consulates in Mexico or Canada instead of traveling often very long distance to a consulate in their home country. Section 632 of IIRIRA puts an end to the practice by requiring visa overstayers to process nonimmigrant visa applications only at a home country consulate. There is a narrow exception in the case of “extraordinary circumstances.” This provision is effective immediately.
The Visa Waiver Pilot Program, which permits nationals of countries with a low number of total nationals illegally in the US to come to the US for up to 90 days without possessing a tourist visa, has been extended until September 30, 1997. Congress has also added several new rules clarifying how countries will be added on a probationary basis to the VWPP and how probationary countries will be added to the permanent list. The new law also provides for the automatic termination of countries if the number of nationals of a country unlawfully in the US exceeds 3.5%
After considerable debate over whether the Diversity Visa program (the so-called “Green Card Lottery” where, in order to increase the overall diversity of the annual pool of immigrants to the US, 55,000 visas are allotted for persons randomly chosen by computer) should be permitted to continue, Congress elected not to kill the program. Instead, the main new provision affecting the lottery (other than the decision to allow 1995 Polish lottery winners to adjust to permanent residency described in the section above describing changes to legal immigration), is the authorization for the Department of State to charge an application fee to lottery entrants.
After a great deal of media publicity surrounding the practice by many immigrants of female genital mutilation (frequently referred to as “female circumcision”), the INS has now been charged with making available to all immigrants and nonimmigrants information on the harmful consequences of this practice. The information is supposed to be presented in a “culturally sensitive” manner and should also discuss criminal consequences of the practice (see below for information on new criminal provisions). Finally, the INS is supposed to only target the distribution of the information to nationals of countries where female genital mutilation is commonly practiced.
Congress has created a new crime category for persons who knowingly perform genital mutilation (defined in the new law) on females under the age of eighteen years. Persons convicted of this crime are subject to fines and/or imprisonment of up to five years. This new law goes into effect on April 1, 1997.
Concerned by reports of fraudulent marriages and abusive relationships, Congress has included in IIRIRA a section addressing the so-called “mail order bride” business. International matchmaking organizations must now disseminate information to foreign spouses on US immigration rules according to guidelines to be specified by INS. The information must be presented in the foreign spouse’s native language and must discuss conditional permanent residency and battered spouse rules as well as the fact that the matchmaking organization is not regulated by the government. Matchmaking organizations that fail to comply with the rules are subject to fines as high as $20,000. Congress has also called for the conducting of a study of mail-order marriages to examine fraud and abuse problems. The report on the study must be submitted no later than September 29, 1997.
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. The information provided in this article has not been updated since its original posting and you should not rely on it until you consult counsel to determine if the content is still valid. We keep older articles online because it helps in the understanding of the development of immigration law.