This week President Clinton signed the final budget bill for fiscal year 2001.  Among the many parts of the bill are several immigration provisions.  The provisions passed represent a fairly even compromise between the competing bills, the Latino and Immigration Fairness Act (LIFA), which was supported by the Administration and congressional Democrats, and the Legal Immigrant Family Equity Act (LIFE), which was supported by congressional Republicans.  The bill contains four principle provisions:  the temporary restoration of section 245(i), the expansion of the K visa, the creation of the V visa, and 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.  This week we will address section 245(i) and the new uses of the K visa, and next week we will provide information on the new V visa and the 1986 amnesty provisions.

Section 245(i)

Initially enacted in 1994, section 245(i), referring to its place in the Immigration and Nationality Act, allows many people who have either never had valid immigration status in the US or who have fallen out of valid status to pay a 00 penalty fee and apply for adjustment of status in the US.  The reason that this is so important is that without it, many people who do not have valid status in the US would be required to seek their immigrant visa in their home country, and because of the status violation, would be barred from reentering the US for at least three, and in many cases, ten years.

The provision of the budget bill restoring section 245(i) has two primary requirements.  First, applicants for adjustment of status under it must be able to prove that they were in the US on the date that the law was enacted, December 21, 2000.  Second, section 245(i) will be in effect only until April 30, 2001.  This means that to be eligible for adjustment of status under section 245(i), an application for an immigrant visa must be filed by a qualifying family member on or before April 30, 2001, or that a labor certification or application for an immigrant worker must be filed on or before that date.  The effect of this is that people will be able to apply for adjustment of status long after April 30, 2001, so long as the qualifying application is filed by that date.

The following groups of people, who would ordinarily be ineligible for adjustment of status, are able to apply for adjustment of status under section 245(i):

·        People who entered the US without inspection;

·        People who have fallen out of valid nonimmigrant status or who have otherwise violated the terms of their status;

·        People who have engaged in unauthorized employment;

·        Crewmembers who entered the US with a D visa;

·        People admitted in the transit without visa category; and

·        People admitted under the Visa Waiver Pilot Program (now the Visa Waiver Permanent Program).

Some classes of people will remain ineligible for adjustment of status, despite the reinstatement of section 245(i).

·        Stowaways,

·        People admitted on a K visa who failed to marry the petitioning US citizen within 90 days after arrival;

·        People subject to the J-1 two-year home residency requirement;

·        People who have failed to appear at a scheduled deportation hearing or asylum interview, or who have failed to follow a deportation order or grant of voluntary departure;

·        People who are seeking adjustment of status based on a marriage to a US citizen or permanent resident that was entered into while the person was in deportation proceedings, unless it can be shown that the marriage was entered into in good faith and not for immigration purposes;

·        People who were placed in removal proceedings upon their entry to the US;

·        Children in nonimmigrant status or seeking to adjust their status as orphans;

·        People in S visa status (government informants) who have not received permission from the Attorney General to seek adjustment of status; and

·        People who are deportable by reason of having engaged in terrorist activities while in the US.

To apply for adjustment of status under section 245(i), the applicant must submit both Form I-485, the standard adjustment of status application, and Supplement A to Form I-485, in addition to the other required forms.  Supplement A is used to determine whether the applicant eligible for adjustment of status under section 245(i).  Applicants will also be required to submit proof that they were in the US on the date section 245(i) was reinstated, December 21, 2000.

Because the budget bill was enacted with so little recorded debate, there is no report on the immigration provisions.  To address this issue, Sen. Edward Kennedy (D-MA), one of the early supporters of LIFA, included a statement on the intended interpretation of the new immigration laws.  With regard to section 245(i), he says that the requirement that the applicant be physically present in the US on the date of enactment should “be interpreted with common sense.”  Noting that in many cases it could be difficult for an applicant to prove his or her presence in the US, Sen. Kennedy urged the INS “to be flexible in the types of evidence it will accept.”  He also encouraged the INS to conduct outreach programs to inform people of their potential eligibility.  He also said that to ensure that all eligible applicants are able to seek adjustment of status, the INS should accept incomplete applications and allow additional documentation to be submitted after the deadline.

It is estimated that approximately 200,000 people will benefit from the temporary restoration of section 245(i).

K Visas

LIFE also expands the use of the K visa.  K visas are ordinarily reserved to fiancés and fiancées 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 their arrival in the US.  LIFE makes 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 for this new use of the K visa, an immigrant visa petition must have already been filed when the application for the K visa is made.  The law allows K visas to be issued to people for whom an immigrant visa application was filed before or after the law was enacted.  As with all K visa petitions, the US citizen must file it with the INS in the US, and the spouse must be outside the US.  If the marriage occurred outside the US, the K visa must be issued by the US consulate with jurisdiction over the location where the marriage occurred.

The other requirements of the K visa apply to K visa applications under this new law.  While these requirements primarily relate 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 could not have been entered into solely for immigration benefits and the marriage must be legally valid.