A recent INS interpretation of a key section of the Immigration and Nationality Act has eased the fears of many regarding how wide the impact of the new three and ten year bars on admissibility will be. The recently passed Illegal Immigration Reform and Immigrant Responsibility Act of 1996 (“IIRAIRA”) makes aliens seeking to reenter the United States inadmissible if they were unlawfully in the United States for certain periods of time after April 1, 1997. Those unlawfully present for more than 180 days (with the counting beginning after April 1st, 1997) are barred from admission to the US for three years. Those unlawfully present for more than a year (with the counting beginning after April 1st, 1997) are barred from admission to the US for ten years.
Section 245(i) of the Immigration and Nationality Act allows certain eligible aliens to adjust status to permanent while they are unlawfully present in the United States by paying a penalty fee of $1000. The INS has determined that Section 245(i) supercedes the 3 and 10 year bar provisions in IIRAIRA.
Section 245(i) is set to expire on September 30, 1997. If it does expire, the INS has stated that it will no longer accept Section 245(i)-based adjustment applications, but it will continue to adjust the status of aliens who filed an adjustment application (Form I-485) prior to that date. Whether Congress will renew Section 245(i)has become one of the key areas of this year’s immigration legislative agenda. Immigration opponents see Section 245(i)as an unacceptable loophole that thwarts the intentions of the new law. Immigration advocates are pushing for an extension of the new law and see it as a way to alleviate what is considered to be extremist legislation.
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