It Isn’t An Amnesty, But…

By Stanley Mailman and Stephen Yale-Loehr*

Immigrant communities throughout the United States remain perplexed about the immigration law enacted on December 21, 2000. Is it an amnesty like the 1986 legalization law that led to permanent residence for some three million foreign nationals? Rumors that it is and has a cutoff date of April 30, 2001, have the phones ringing in hundreds of law offices and immigrant aid centers. "There’s total, mass confusion out there," according to a spokesman for the Immigration and Naturalization Service (INS). Patrick J. McDonnell, New Law, Misinformation Bewilder Immigrants, L.A. Times, Jan. 29, 2001.

In fact, the LIFE Act Amendments of 2000, enacted as part of the Consolidated Appropriations Act, 2001, Pub. L. No. 106-554, 114 Stat. 2763, has several sections that facilitate permanent residence for foreign persons who might otherwise be barred. But none of them provide a true amnesty. Nor, as President Clinton requested, do they ease the registry section, a provision that makes the green card available to those who simply lived in the United States continuously since January 1, 1972. Section § 1502 of the new law, however, by updating INA § 245(i), 8 U.S.C. § 1255(i), is great news for hundreds of thousands of people who might otherwise be barred from permanent residence. How § 245(i) helps them, under our Byzantine immigration laws, and how its April 30 deadline operates, are the subjects of this article.

To begin with, INA § 245 is the chief vehicle by which persons within the United States adjust their status to become legal residents. Until Congress enacted § 245 in 1952, aspiring immigrants, even those already in the United States on a temporary visa, had to do "consular processing." Under that procedure, still available, the immigrant applies for a visa at a U.S. consular office abroad, which is needed to seek admission to the United States for permanent residence (the "green card"). Immigrants who have the choice usually prefer adjustment. It spares them the bother and the cost of travel, and permits them to have a lawyer present at any interview or hearing, an element of due process denied at many U.S. consulates. Moreover, a consular denial is final; it doesn’t permit the administrative and judicial recourse available to adjustment applicants. But as a result of an "unlawful presence" provision introduced in 1996, INA § 212(a)(9)(B), 8 U.S.C. § 1182(a)(9)(B), the difference for many is no longer a matter of mere convenience or better procedure: it is crucial to getting the green card.

Under INA § 212(a)(9)(B), often referred to as the 3/10-year bar, those who are unlawfully present in the United States for more than 180 days and then leave voluntarily before the INS brings removal proceedings, become inadmissible for three years from the date of their departure. And if their unlawful stay extends to a year or more, the bar to readmission is ten years. Unlawful presence starts immediately for someone who enters without inspection (EWI), and as soon as her authorized stay expires in the case of nonimmigrant, for example, a visitor. Many people who overstayed their visas in the last several years, or who eluded inspection and remained, have established strong ties to the United States and are now eligible for an immigrant visa. They are or can be the beneficiaries of a family petition by a U.S. citizen or lawful resident, or a petition or labor certification by a U.S. company. And they have committed no crimes or done other acts that would make them otherwise inadmissible. But as soon they leave the United States to obtain the immigrant visa, the 3/10-year bar kicks in. Their only hope therefore is to adjust their status while here in the United States.

The starting point for adjustment under INA § 245 is eligibility for an immigrant visa and admissibility. But to discourage certain conduct, Congress has added several conditions. Section 245(a) requires inspection at entry, thus barring border-jumpers. And, with certain exceptions, § 245(c) disqualifies those who work without permission or overstay. (It also bars crewmen, transits without a visa (usually persons making an airline connection for travel onwards), and those admitted as visitors under the visa waiver program.) Ordinarily therefore the very unlawful presence that stands in the way of getting the visa overseas also bars access to adjustment in the United States.

Enter subsection 245(i). Enacted in 1994 (before Congress introduced the 3/10-year bar), this provision, with few exceptions, allows admissible aliens eligible for an immigrant visa to adjust in the United States on payment of a special fee, now $1,000, in addition to the regular adjustment filing fee. In effect, it allows applicants to overcome their disqualification for adjustment by paying a surcharge or penalty. Its rationale, when initially passed, was to ease the burden on applicants who would eventually get their green card anyway via consular processing. And the State Department approved the provision on grounds of efficiency: it saw little sense in taxing the workload of its consulates overseas with applications that could be done by INS offices at home.

But Congress initially enacted § 245(i) only provisionally, that is, for three years. By the end of that period, § 212(a)(9)(B) had become law and the heavy impact of its 3/10-year bar was apparent. In 1997 Congress was persuaded to extend 245(i)’s sunset date to January 14, 1998. In doing so it added a grandfathering feature to that deadline. Instead of having to file the adjustment application by that date, an alien whose labor certification application or visa petition was filed by then may apply for adjustment under § 245(i) at any time. (Note that an applicant isn’t grandfathered by filing for the visa lottery, or even by a lottery win.)

The Life Act Amendments preserves those rights, but extends the January 14, 1998 deadline. See generally the policy-memorandum to the field by Michael D. Cronin, Acting INS Exec. Assoc. Comm’r, File No. HQ 70/23.1-P (Jan. 26, 2001) (Cronin memorandum), reproduced at 6 Bender’s Immigr. Bull. (Feb. 1, 2001), http://www.bender.com (Immigration Channel), 1-26-01 Cronin Memo; 78 Interpreter Releases 325 (Feb. 5, 2001). To submit an adjustment application under § 245(i) under the new law, the applicant must have a visa petition or application for labor certification on file by April 30, 2001, and have been in the United States on December 21, 2000. The physical-presence requirement, designed to discourage others from coming to take advantage of the new enactment, doesn’t apply to an accompanying spouse or child who also benefits from the 245(i) dispensation.

Particularly because of the deadline, practitioners should be careful to file the right form with the right agency. For example, in the case of a registered nurse or physical therapist, the Department of Labor will not accept an application for individual labor certification: make the application under DOL’s Schedule A blanket certification by including the form-application and the individual’s credentials with an I-140 visa petition and file it with the Immigration and Naturalization Service. See 20 C.F.R §§ 656.10(a), 656.21(a), (b), (c), (e); 3 Gordon, Mailman & Yale-Loehr, Immigration Law and Procedure § 39.02[3][b] (2000).

Does the visa petition or labor certification have to be approved? Not really. See generally memoranda by Robert L. Bach, INS Exec. Assoc. Comm’r, File No. HQ 70/23.1-P, HQ 70/8-P (Apr. 14, 1999) and (June 10, 1999), reprinted respectively at 4 Bender’s Immig. Bull. 464 (May 15, 1999) and 777 (July 15, 1999). It doesn’t matter, according to the Service, how the applicant eventually qualifies for a visa number and thereby becomes eligible to file the application for adjustment of status. An applicant facing an endless wait as the beneficiary of a fourth preference family petition filed by his U.S. citizen brother may properly go the employment-based route as a computer programmer. Or the beneficiary of a petition by one employer may get a visa number through a petition by another, or even by winning the visa lottery. But however the applicant eventually qualifies for a visa number, the application or petition that serves as the vehicle for grandfathering under § 245(i) must be approvable when filed.

The Department of Labor disclaims the ability to determine whether a certification application is approvable while it is pending. Hence the Service will only ask for evidence that it was "properly filed," that is, completed and filed by the appropriate deadline. On the other hand, the Service may have a hard call in deciding whether a given visa petition was not only filed on time but approvable when filed. An INS receipt showing timely filing together with an approval notice presents an easy case. But if a petition was denied, withdrawn, or revoked, or is still pending, the Service will check with the office where it was filed to get an opinion based on the petition and supporting documentation submitted. It may then decide that the petition was approvable when filed even though it was denied because of changed circumstances; for example, the petitioner died, went out of business, or suffered business reversals. In cases where a petition is approvable on the facts alleged in the form, but is lacking certain documentation, the Service will take additional evidence. It will clearly accept the later submission of such documents as birth and marriage certificates. Presumably it will also take university diplomas and other evidence needed to buttress an employment-based petition.

The immediate challenge facing those who need the benefit of § 245(i) is to have a properly completed application for labor certification or visa petition filed for them by April 30, 2001. Timely filing means getting the form to the appropriate agency by that date; mailing by then isn’t enough. On the other hand, although the petition has to be approvable, it needn’t be documented by April 30. A bare bones petition will do if accompanied by the required fees. The Service has signaled its personnel to be cooperative, as seen in this paragraph from the Cronin memorandum:

"Applications and petitions submitted under section 245(i) of the Act may not be rejected prior to May 1, 2001, as long as they bear the required fee and the applicant’s signature. Visa petitions which meet the threshold filing requirements of 8 CFR 103.2(a)(7)(i) and (ii), may not be rejected prior to May 1, 2002. In order to allow the maximum opportunity for timely receipt of visa petitions, the Service will make special arrangements for submission of visa petitions to Service offices as the April 30, 2001, sunset date approaches."

No, the newly amended § 245(i) isn’t an amnesty. Although it permits an end run around INA § 212(a)(9)(B), it doesn’t waive any grounds of inadmissibility. And while a skeleton visa petition or application for labor certification can later be supplemented and even superseded by the approval of another petition or application, § 245(i) doesn’t spare anyone the need for a visa petition approval. Finally, for the beneficiary of a timely-filed visa petition or labor certification application, the December 21, 2000 amendment holds open the right to sidestep the bars to adjustment contained in subsections § 245(a) and (c). Yet it doesn’t stop removal proceedings before the beneficiary can qualify to file the adjustment application.

But the new legislation is as close to an amnesty as those facing the 3/10 year bar are likely to find on the horizon. And they would do well to learn its requirements and to exploit its opportunities.

bio info: * Stanley Mailman and Stephen Yale-Loehr are co-authors of Immigration Law and Procedure, published by Matthew Bender & Co. Mr. Mailman is counsel to Satterlee Stephens Burke & Burke in New York City. Mr. Yale-Loehr is of counsel at Miller Mayer in Ithaca and teaches immigration law at Cornell Law School.

This article originally appeared in the February 22, 2001 issue of the New York Law Journal. Copyright © 2001 the New York Law Publishing Company. The authors thank the Journal for permission to reprint this article.