LEGAL IMMIGRATION AND FAMILY EQUITY ACT

LEGAL IMMIGRATION AND FAMILY EQUITY (LIFE) ACT

On December 21, 2000, the Legal Immigration Family Equity Act was signed into Law. The new Law makes numerous important changes in Immigration law.

The Law contains four principle provisions:

a) The temporary restoration of section of section 245(i)

b) The creation of the V Visa

c) The expansion of the K Visa

d) The restoration of Federal Court Jurisdiction over class action lawsuits related to the 1986 amnesty

An estimated 700,000 people should benefit from the new law.

Creation of New Temporary Visa “V” for Spouses and Minor Children of Legal Permanent Residents Awaiting an Immigrant Visa

The LIFE Act creates a new visa Category - the “V” visa. This visa will be utilized by spouses and children of Permanent Residents whose applications for immigration have been pending for at least three years.

To be eligible for a “V” visa, the spouse or child must meet the following criteria:

· A Green card petition was filed on or before enactment of the law. The sponsoring permanent resident must already have filed a green card petition for the spouse or minor child with the INS on or before December 21, 2000.

· Must have been waiting at least 3 years. The petition must either have been pending with the INS for three years or more or, if the petition has been approved, the spouse or minor child must have been waiting at least three years for their ‘turn’ in the green card line.

In case the petition has been approved, and has been pending for three years or more because of unavailability of immigrant visas, the spouse or minor child can still obtain a V visa. The same may also be obtained if an application for an immigrant visa or an adjustment of status has been pending for three years or more. If the qualifying application is denied, the V visa status terminates 30 days after the date of the denial.

“V” visa holders will have employment authorization. Applicants for a “V” visa who are outside the US at the time of the application will not be subject to the three and ten year bars on re-entering the US following a period of unlawful presence.

“V” visa holders will be eligible to apply for adjustment of status when an immigrant visa becomes available. However, if after obtaining the V visa, the person ever falls out of valid status, they will not be allowed to apply for adjustment of status. The person must include a $ 1,000 penalty fee if they would be subject to the fee under section 245(i).

Waiver of Grounds of Inadmissibility and Adjustment of Status. The law provides that periods in the United States in unauthorized status will not bar the applicant for obtaining a “V” visa. The law also would allow individuals already in the United States to apply to “adjust status’ to the new “V” category, even though they are illegally in the United States.

Creates a New Temporary Status for Spouses of U.S. Citizens Awaiting an Immigrant Visa

LIFE also expands the use of the “K” visa. “K” visas are ordinarily reserved for fiancé/es of US citizens and their minor children. The visa includes work authorization, and the visa holder must marry the US citizen petitioner within 90 days of his/her arrival in the US. LIFE allows spouses and minor children of US citizens, who are waiting abroad for approval of an immigrant visa petition, to enter the US. The spouse will be eligible for work authorization.

To be eligible, the spouse and minor children must meet the following criteria:

· An immigrant visa petition must be previously filed. The law requires that the U.S. citizen file an immigrant petition before a visa can be issued to the spouse abroad. The “K” visa will allow the spouse abroad to enter the U.S. and await the approval of the petition.

· Recipient of the “K” visa must be outside of the United States. The law only authorizes the visa to be issued by a consular officer outside of the United States.

There is no provision to “adjust status” for someone already in the United States in an unlawful status.

· The “K” visa petition must be filed in the United States. The petition for the K visa must be filed in the United States by the U.S. citizen spouse.

The new ‘K’ visa may further depend on INS approval to some kind of petition for non-immigrant status filed in the U.S. by the petitioning citizen. The exact nature of this petition has not yet been determined by the INS.

The other requirements of the “K” visa primarily are related to requirements that the couple must have met in person within the last two years; this will not normally be an issue when there is a marriage. However, the marriage should not have been entered into solely for immigration benefits and the marriage must be legally valid.

“K” visas are available to current and future applications. The law states that this new “K” status is available both to individuals with currently pending green card petitions and future applications.

Work Authorization. Current law provides that “K” visa holders are permitted to work in the United States. These provisions are also applicable to these new “K” visas non- immigrants.

Allows for the Adjustment of Status of Certain Late Legalization Class Members

Who Is Eligible for Relief:

The LIFE Act makes some modifications to the provisions of the 1986 amnesty (Section 245A of the INA) and provides an opportunity to apply for this relief only to persons who were part of certain class action lawsuits against the INS for their improper handling of the 1986 amnesty program. To qualify a person must prove that he or she:

Has filed a written claim, before October 1, 2000, for class membership in CSS v. Meese, LULAC v. Reno, or INS v. Zambrano - three of the various class action lawsuits filed against the INS for their improper handling of the 1986 amnesty program).
Has entered the United States before January 1, 1982 and resided continuously in the United States in an unlawful status through May 4, 1988.
Was continuously physically present in the United Sates beginning on November 6, 1986 and ending on May 4, 1988 (brief, casual and innocent absences will not interrupt a finding of continuous physical presence).
Had filed an application for adjustment of status with the Attorney General within one year of the date on which the Attorney General issues final regulations to implement the new law. The Attorney General is required to issue those regulations within 120 days after enactment.
Has not been convicted of any felony or three or more misdemeanors, has not assisted in the persecution of any person (on account of race, religion, nationality, political opinion or membership in a particular social group) and is registered or registering under the Military Selective Service Act (if required to do so under that Act).
Is admissible to the United States as an immigrant. The Attorney General may (for humanitarian purposes, to assure family unity, or when it is in the public interest) waive any of the grounds of inadmissibility except those relating to criminals, drug offences, security grounds and public charge grounds. In addition, the Attorney General may grant a waiver of the grounds of inadmissibility related to aliens seeking admission after previous removal and aliens present after previous immigration violations.
Is capable to pass the naturalization exam (relating to an understanding of basic civics and the ability speak, read and write ordinary English) or is able to show that they are satisfactorily pursuing a course of study (recognized by the Attorney General) to achieve such an understanding of English and civics.

Relief Granted Under the Law:

· Eligible applicants will apply directly for permanent residence, rather than for temporary resident status.

· The Attorney General is required to establish a process under which an alien who has become eligible to apply for adjustment of status because of the enactment of this law and who is not physically present in the United States may apply for such adjustment from outside of the country.

· Applicants who submit a prima facie application under this law are entitled to a stay of deportation, work authorization, and permission to travel while their application is pending.

· The limitation on judicial review under IIRAIRA (Section 377) will not apply to applicants under these modifications and they will be entitled to the same review allowed by the 1986 laws.

· Newly legalized persons will not be disqualified from receiving certain public welfare assistance. (Under the original Section, 245A applicants were disqualified from certain assistance for 5 years after their application was filed). However, they may still be subject to restrictions bases on the 1996 Welfare Reform Law.

· The confidentiality provisions of Section 245A (that generally prevent the information submitted on the application from being used for any purposes except criminal prosecution) will apply, except that information submitted by an applicant under the new law may be used in proceedings to rescind an adjustment of status.

Grants Protection from Deportation and Work authorization to the Spouses and Children of Late Legalization Applicants

Consistent with laws passed in 1990 to protect the family of legalization applicants who were already in the United States, the LIFE Act prevents the deportation of the spouses and minor children of a person who is applying for late legalization under the new law. Also consistent with prior laws, these family members are eligible for work authorization.

Who Is Eligible for Relief: To be eligible for benefits a person must prove that he/she is:

The spouse or unmarried child of a person who is eligible for adjustment of status as a result of the late legalization provisions of the LIFE Act.
Entered the United States before December 1, 1998 and resided in the United States on that date
Has not been convicted of a felony or three or more misdemeanors in the United States, has not assisted in the persecution of any person (on account of race, religion, nationality, political opinion or membership in a particular social group), or is otherwise not a danger to the community of the United States.

Relief Granted Under the Law:

Eligible people will be protected from deportation for violations of status in the United States but will continue to be deportable for other grounds of deportation, including criminal activity.
Eligible people will be entitled to work authorization in the United States.
If the applicant for benefits under the late legalization provisions of the LIFE Act is applying from outside of the United States, the Attorney General is required to establish a process by which eligible spouses and children may be paroled into the United States in order to obtain the benefits under the new law.

Provision of Certain Waivers and Protections against Deportation for Applicants under NACARA and HRIFA

Waiver of certain grounds of inadmissibility: In applications for adjustment of status under NACARA and HRIFA, the Attorney General may waive certain grounds of inadmissibility relating to re-entry after a previous order of deportation or removal (§212(a)(9)(A) and (C)).

Protection from reinstatement of prior orders of deportation or removal: In applications for adjustment of status, for suspension of deportation or for cancellation of removal as provided by NACARA or HRIFA, the Attorney General is prohibited from reinstating previous orders of removal or deportation in order to prevent those applications from being filed (§241(a)(5) shall not apply).

Availability of Motions to Re-open: NACARA and HRIFA applicants who become eligible to apply for adjustment of status, suspension of deportation, or cancellation of removal as a result of the changes contained in the LIFE Act. These applicants will be able to file one Motion to Re-open any exclusion, deportation, or removal proceedings in order to apply for an adjustment of status under the Act. This right to file a Motion to Re-open exists notwithstanding any time and numerical limitations otherwise imposed under the Immigration and Nationality Act.

Related Links:

Immigration Through The LIFE Act

U.S. Dept of State - Information on New K and V visas

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The information in this article is of a general nature and may not apply to any specific or particular circumstance. It is not to be construed as legal advice and does not establish an attorney-client relationship between The Law Offices of Cyrus S Nallaseth and the viewer.