The President and the US have Congress have provided an early holiday gift to thousands of Latin Americans and Eastern Europeans potentially subject to deportation. The New Nicaraguan Adjustment and Central American Relief Act, signed by President Clinton on November 19th, provides a broad amnesty to certain Cubans and Nicaraguans in the US, and more limited relief to El Salvadorans, Guatemalans and Eastern Europeans in the US. The following are highlights of the new legislation:
The Amnesty Provisions
- Nicaraguans and Cubans in the US continuously since 1 December 1995 may apply to become lawful permanent residents. The INS will soon issue application forms for these people and spouses and unmarried children under 21 of these applicants are also eligible to apply if they too have been residing continuously since 1 December 1995.
- Absences of less than 180 days will not be considered to interrupt continuous physical presence
- Applications must be filed no later than 1 April 2000
- Proof of continuous physical residence can be made by demonstrating that prior to 1 December 1995 an alien:
- applied for asylum
- was issued an order to show cause
- was placed in exclusion proceedings
- applied for adjustment of status
- applied for employment authorization
- performed work which is evidenced by Social Security records
- applied for any immigration benefit
- anyone in deportation or exclusion proceedings or who has a final order of deportation or removal can apply for adjustment of status under the new rules.
- like the new asylum rules, only persons with adjustment applications under the new rules pending for more than 180 days will be granted work authorization.
- there is no judicial review of Justice Department decisions under this new law. Administrative review by the INS is still available.
Suspension of Deportation Rules
- Certain categories of people in deportation proceedings are now eligible to apply for suspension of deportation using the more liberal rules available prior to implementation of the Illegal Immigration Reform and Immigrant Responsibility Act of 1996. The following individuals can now use the pre-IIRAIRA standards:
- Salvadoran nationals who first entered the US on or before 19 September 1990 and registered for benefits in the ABC case on or before 31 October 1991;
- Guatemalan nationals who entered the US on or before 1 October 1991 and who registered for ABC benefits before December 31, 1991
- Guatemalans or Salvadoran nationals who filed an asylum application with the INS before 1 October 1990
- Applicants who entered the US before 31 December 1990 who filed asylum applications before 31 December 1991 and who are nationals of the following countries:
- former Soviet Union
- Russia
- any former republic of the former Soviet Union
- Estonia
- Latvia
- Lithuania
- Poland
- Czechoslavakia
- Romania
- Hungary
- Bulgaria
- Albania
- East Germany
- Yugoslavia
- any state of the former Yugoslavia
- the old suspension of deportation standards state that any individual in the US for at least seven continuous years, who has good moral character and whose removal would cause extreme hardship to themselves, their spouses, their parents, or their children are eligible for a judge to award permanent residency. Under the new rules, the residency period is ten years and hardship to oneself does not count. Further, there is a 4,000 cap on the number of suspensions which may be awarded each year under the new rules.
N-J-B and the 4,000 Cap
In a recent Board of Immigration Appeals decision, the INS has interpreted the new suspension rules as meaning that time accrued in immigration proceedings do not count toward the time required for suspension eligibility. The new amnesty statute contains language codifying this interpretation into law. Previously, the US Attorney General vacated the N-J-B finding, but after passage of this new law, it is not clear how the INS will deal with this issue. With respect to the 4,000 case cap on suspensions, the legislation does provide that only those cases decided after 1 April 1997 count toward the 4,000 cap and not cases decided before that date.
Reduction in Employment-Based Visas and DV Visas
In order to come up with the visas made available in the amnesty and suspension of deportation provisions, Congress decided to reduce by 5,000 the visa category for “other workers” in the Employment-based categories and by 5,000 the annual number of DV lottery visas available.
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