Business Immigration News Update 
from True, Walsh & Miller
Congress Passes New Immigration Law 
December 20, 2000

Congress and the President finally reached agreement on December 15 on a major immigration legislative package entitled the Legal Immigration and Family Equity Act Amendments of 2000 (LIFE Act). The new law, which President Clinton is expected to sign shortly, offers various benefits to hundreds of thousands of immigrants. One of these provisions temporarily restores an expired measure that permits certain out-of-status immigrants to become lawful permanent residents here in the United States. Another restores eligibility under the 1986 legalization law to the beneficiaries of certain class-action lawsuits that challenged its administration. Still others address the hardship faced by spouses and children of U.S. citizens and lawful residents when visa backlogs delay them from completing the immigration process. Here are highlights of the new law:

Until 1998, section 245(i) of the Immigration and Nationality Act (INA) temporarily allowed certain non-citizens to become permanent residents without having to leave the United States. As background, people are generally barred from adjusting their status in the United States if they: (1) entered without being inspected by an Immigration and Naturalization Service (INS) officer; (2) ever worked illegally in the United States; or (3) ever failed to maintain lawful status in this country. Instead, they must return to their home country to process a green card application. In some cases, however, by leaving the United States they trigger a three- or ten-year bar to their return if they were unlawfully present in the United States for more than six months or a year, respectively.

Congress added INA § 245(i) in 1994 to allow people who otherwise qualified for permanent residence, but not for adjustment of status, to be able to adjust their status in the United States by paying a surcharge of $1,000. Congress ended § 245(i) in late 1997, but grandfathered those who started the green card process by January 14, 1998, even if they couldn’t complete it until later.

The LIFE Act extends INA § 245(i) from January 14, 1998 until April 30, 2001. This means that any beneficiary of an immigrant visa petition or labor certification application filed before April 30, 2001 will be able to stay in the United States and apply for adjustment of status under INA § 245(i) as long as they pay the penalty fee of $1,000. However, for any application filed after January 14, 1998 but before April 30, 2001, applicants must prove they were physically in the United States on the date the LIFE Act was enacted. Documentation of that fact will be critical.

Under current law, permanent residents may apply for green cards for their spouses and minor children in the family 2A immigrant visa category. While almost 90,000 people immigrate to the United States each year in the family 2A category, the backlog of applications in this category continues to grow. People from most countries have waited over four years to immigrate in this category. The wait for Mexicans has been six years, and new applicants will wait longer. Because these relatives are intending immigrants they can’t qualify to come to the United States as visitors even for a short time while awaiting their green cards. And if they are already here they run the risk of removal.

The LIFE Act creates a new "V" temporary visa category designed to remedy this problem. To qualify for a V visa, the sponsoring permanent resident must already have filed a green card petition for his or her spouse or minor child with the INS as of the date the LIFE Act was enacted. The petition must either have been pending with the INS for three years or more or, if it was approved, the spouse or minor child must have been waiting their turn in the green card line at least three years.

The new law does not set a time limit for people in V nonimmigrant status. The thinking appears to be that they may remain in the United States until their immigrant visa petition is approved. During that time they may work.

The LIFE Act waives certain grounds of inadmissibility for V nonimmigrants, including periods of unlawful presence in the United States. And they should be able to adjust their status to permanent residence under the newly reinstated § 245(i).

While enactment of the V visa recognizes the need to provide relief to people in long immigration backlogs, it is available only to family members for whom an application has been filed as of the date of enactment. Future applicants are ineligible. Further, the V visa is only available to beneficiaries in the family 2A category. It is unavailable to all other family members, including unmarried sons and daughters of U.S. citizens (family 1st category) or unmarried sons and daughters (21 years of age and older) of green card holders (family 2B category), many of whom have "aged-out" of the family 2A category because of processing delays. Married sons and daughters (family 3rd category) and brothers and sisters of U.S. citizens (family 4th category) also are not covered. 

The current INA allows U.S. citizens to petition to bring their spouses, children and parents to the United States in the "immediate relative" category. Unlike other family-sponsored immigrant visa categories, the immediate relative category has no annual cap on the number of people who can immigrate this way. But it can still take up to a year to enter the country in this category because of processing delays. During that time, those relatives, because they are intending immigrants, may find it hard to gain admission to the United States even for short visits.

To remedy this problem the LIFE Act expands the existing K nonimmigrant visa category. Until now that category has been limited to fiancé(e)s of U.S. citizens who enter the country and get married within 90 days. The LIFE Act expands the K category to spouses of U.S. citizens who are already married and are waiting outside of the United States for the approval of their immigrant visa petitions. Any minor children who are accompanying the spouse can be included in the K petition.

To qualify for the revised K visa category, the U.S. citizen spouse must have filed a K visa petition in the United States. The K visa must be issued by a U.S. consular officer overseas. There is no provision to adjust status for someone already in the United States in an unlawful status. If the marriage to the U.S. citizen occurred outside of the United States, the K visa recipient must have a valid nonimmigrant visa issued by the consulate where the marriage occurred.

The changes mean that spouses and minor children of U.S. citizens will be able to wait in the United States while their green card applications are pending. They may also work while they are waiting.

This change may not be as beneficial as it may appear at first glance. The INS must still approve a K visa petition and a consular officer must issue the visa before a spouse or child(ren) may enter the United States. That can take several months. Moreover, K visa processing may slow down considerably if many people apply to take advantage of this new provision. It remains to be seen if this provision significantly helps to remedy the current problem.

The LIFE Act offers new hope and opportunities for many people, especially those who now may be able to become permanent residents in the United States through the temporary restoration of INA § 245(i). The April 30 deadline, however, will put a premium on speed and collecting the right documentation.

As with any new law, many ambiguities lurk in the statutory language. Call or email us if you would like a consultation to discuss your immigration options.
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That’s it for this issue. For answers to any of your immigration questions, contact Hilary Fraser (htf@millermayer.com), Rosie Mayer (rma@millermayer.com), or Steve Yale-Loehr (syl@millermayer.com) at True, Walsh & Miller.