ILW.COM - the immigration portal Immigration Daily

Immigration Daily: the news source for legal professionals. Free! Join 35000+ readers

Home Page

Advanced search


Immigration Daily

Archives

Processing times

Immigration forms

Discussion board

Resources

Blogs

Twitter feed

Immigrant Nation

Attorney2Attorney

CLE Workshops

Immigration books

Advertise on ILW

VIP Network

EB-5

Chinese Immig. Daily

About ILW.COM

Connect to us

Make us Homepage

Questions/Comments


SUBSCRIBE

Immigration Daily

 

Chinese Immig. Daily



The leading
immigration law
publisher - over
50000 pages of free
information!

Copyright
©1995-
ILW.COM,
American
Immigration LLC.

Immigration Daily: the news source for
legal professionals. Free! Join 35000+ readers
Enter your email address here:



< Back to current issue of Immigration Daily < Back to current issue of Immigrant's Weekly

ILW.COM Premium Membership

Adjustment of Status Under LIFE Legalization Provisions - Part 1
by Alexander Nisengolts

Adjustment of Status Under LIFE Legalization Provisions - Part 1

Introduction

On June 1, 2001, the INS published the long-awaited Interim Rule in the Federal Register allowing members of three class action lawsuits to apply for adjustment of status to that of Lawful Permanent Resident (LPR), and providing for a stay of removal and work authorization to eligible spouses and children of those aliens. This rule implements the legalization and family unity provisions of the Legal Immigration Family Equity Act (LIFE Act) and its Amendments. Section 1104 of the LIFE Act and Section 1503 of the LIFE Act Amendments (LIFE Legalization provisions) allow certain eligible aliens to apply for adjustment to LPR status. Section 1504 of the LIFE Act Amendments (Family Unity provisions) provides removal protections and temporary employment authorizations to certain spouses and children of aliens eligible to adjust under LIFE Legalization.

Part 1 of this article examines the LIFE Legalization provisions. An examination of Family Unity provisions will be offered in Part 2 of this article.

A. Purpose of the LIFE Legalization Provisions

Enacted on December 21, 2000, as part of the LIFE Act and its Amendments, the LIFE Legalization provisions were designed to allow certain eligible aliens who had filed prior to October 1, 2000, for class membership in one of three legalization class actions lawsuits to apply for adjustment of status to that of a lawful permanent resident (LPR). These class actions lawsuits involved claims by aliens who were unsuccessful in obtaining legalization benefits provided as part of the Immigration Reform and Control Act of 1986 (IRCA) under Section 245A of the Immigration and Naturalization Act (INA). The aliens in the three lawsuits argued that either their claims were denied or that they were discouraged from applying.

The three class actions lawsuits include:

  1. Catholic Social Services, Inc. v. Meese, vacated sub nom. Reno v. Catholic Social Services, Inc., 509 U.S. 43 (1993) (CSS);
  2. League of United Latin American Citizens v. INS, vacated sub nom. Reno v. Catholic Social Services, Inc., 509 U.S. 43 (1993) (LULAC);
  3. Zambrano v. INS, vacated, 509 U.S. 918 (1993) (Zambrano).
According to INS estimates, some 440,000 individuals may be eligible to apply for these benefits. This includes an estimated 400,000 LIFE Legalization applicants and an estimated 40,000 Family Unity applicants.

B. Eligibility Requirements

The Interim Rule provides very detailed eligibility requirements that must be met by LIFE Legalization applicants. In brief, the alien applicant must be able to demonstrate that he or she complies with the following requirements:

  • An application for adjustment under LIFE Legalization has been properly filed within the one-year application period (June 1, 2001 through May 31, 2002). This application may be filed from either within or without the United States;
  • Prior to October 1, 2000, the alien has filed with the Attorney General a written claim for class membership in the CSS, LULAC, or Zambrano legalization class action lawsuits. Applicants who filed a proper claim for class membership but whose class membership was denied by the INS, are still eligible to apply for adjustment of status under LIFE Legalization;
  • The alien has entered the United States before January 1, 1982, and resided continuously in the US in an unlawful status since that date through May 4, 1988. Eligible applicants include aliens who entered the US without inspection before January 1, 1982, or whose authorized period of admission as a nonimmigrant has expired before January 1, 1982, and who resided continuously in the US in an unlawful status since that date through May 4, 1988;
  • With the possible exception of brief, casual, and innocent absences from the US or absences from the US under a grant of advance parole, the alien has been continuously physically present in the US during the period from November 6, 1986 through May 4, 1988;
  • The alien is not inadmissible to the US for permanent residence under any provision of the INA;
  • The alien has not been convicted of a felony or three or more misdemeanors in the US and has never assisted in the persecution of any person or persons on account of race, religion, nationality, membership in a particular social group, or political opinion;
  • The alien is able to demonstrate basic citizenship skills or is pursuing a recognized course of study to achieve basic citizenship skills.

B1. Aliens Previously Deported

The Interim Rule provides that Section 241(a)(5) of the INA governing the reinstatement of a removal order against any alien who illegally re-enters the United States after having been removed or after having departed voluntarily under an order of removal does not apply to aliens adjusting under LIFE Legalization. Provided that the aforementioned continuous residence period has not been interrupted, an alien who has been previously deported or removed from the US or who has voluntarily departed the US under a deportation or removal order is still eligible to adjust status under LIFE Legalization if he or she obtains a waiver of inadmissibility. However, if the alien's departure from the US during the January 1, 1982, through May 4, 1988, period was in accordance with a final order of exclusion or deportation, the continuous residence has been interrupted and the alien will not be able to adjust status under LIFE Legalization.

B2. Inadmissibility Grounds and Available Waivers

As noted above, to be eligible for adjustment of status under LIFE Legalization, an alien must not be inadmissible under section 212(a) of the INA. Careful examination of the alien's case is required to determine whether inadmissibility grounds exist and the extent to which waivers may be available to help the alien.

Waivers are available for some grounds of inadmissibility for humanitarian purposes, to assure family unity, or when it is otherwise in the public interest. In addition, aliens who are inadmissible under Sections 212(a)(9)(A) and 212(a)(9)(C) of the INA, relating to aliens previously removed and aliens unlawfully present after previous immigration violations, should apply for individual waivers. A section 212(a)(9)(A) or 212(a)(9)(C) waiver, however, does not cure a break in continuous residence resulting from a departure from the US under a final exclusion or deportation order at any time during the period from January 1, 1982, through May 4, 1988.

It should also be noted that certain grounds of inadmissibility may not be waived. These grounds include:

  1. Sections 212(a)(2)(A) and (B) - crimes involving moral turpitude and controlled substances;
  2. Section 212(a)(2)(C) - provisions relating to controlled substance traffickers;
  3. Section 212(a)(3) - security and related grounds;
  4. Section 212(a)(4) - aliens likely to become a public charge, unless a special rule, as prescribed in the Interim Rule, helps the alien to overcome the inadmissibility provisions of Section 212(a)(4).

C. Benefits

If the above requirements have been met and an adjustment of status application has been properly filed along with the necessary documents and fees during the application period, LIFE Legalization applicants will obtain adjustment to LPR status. Unlike the beneficiaries of the original Section 245A governing the IRCA legalization program, eligible aliens applying for adjustment of status under LIFE Legalization will be able to adjust to LPR status directly without first having to become lawful temporary residents.

In addition, until a final determination is made on their application, aliens in the United States who appear to be prima facie eligible for adjustment under LIFE Legalization are eligible for the following benefits:

  • They may not be deported or removed from the US;
  • They are entitled to employment authorization;
  • They may travel abroad for brief periods and return to the US from brief, casual, and innocent trips abroad while their applications are pending provided that they apply for and receive "advance parole" from the INS.
By contrast, applicants who are located abroad are not allowed to enter the US for the purposes of filing an adjustment application and are required to remain outside the US at least until the time of the interview.

C1. The Importance of Obtaining INS Permission Prior to Foreign Travel

Obtaining advance parole prior to departure from the US is extremely important for those LIFE Legalization applicants who wish to travel abroad.

A LIFE Legalization applicant who travels abroad under the grant of advance parole following the submission of his or her LIFE Legalization application and who is not otherwise inadmissible under Section 212(a) will not be subject to the three- and ten-year bars to reentry, provided under the INA Section 212(a)(9)(B), for aliens who have accumulated 180 days or 1 year respectively in unlawful status.

However, those LIFE Legalization applicants who travel abroad without a grant of advance parole may be subject to removal or expedited removal proceedings upon their return to the US and may have to await their adjustment applications abroad.

Additional documentation requirements are imposed on LIFE Legalization applicants who wish to travel abroad even though they are subject to a final order of removal, deportation or exclusion. In addition to advance parole, those aliens must also file Form I-212, Application for Permission to Reapply for Admission Into the United States After Deportation or Removal, and obtain approval prior to departure. Otherwise, they would be precluded from being "admitted" to the US or being granted an adjustment of status.

C2. Aliens in Proceedings or Subject to Final Orders of Exclusion, Deportation, or Removal

Aliens who are prima facie eligible for adjustment of status under LIFE Legalization but who have exclusion, deportation, or removal proceedings pending before the Immigration Court or the Board of Immigration appeals (BIA) or who have a motion to reopen or a motion to reconsider filed before the Immigration Court or the BIA, may request that the proceedings be administratively closed or that the motion filed be indefinitely continued, in order to allow the alien to pursue a LIFE Legalization application with the INS.

In addition, aliens who are subject to a final order of Exclusion, Deportation, or Removal, but who are prima facie eligible for adjustment of status under LIFE Legalization, may obtain a stay of execution of any final order of exclusion, deportation, or removal by filing a LIFE Legalization application with the INS during the application period.

D. The Application Process

To be eligible for LIFE Legalization, an alien must file a Form I-485 Application to Register Permanent Residence or Adjust Status during the one-year application period beginning June 1, 2001, and ending May 31, 2002, along with all required documentary evidence and appropriate fee(s). It is important to note that the requirements for I-485 submissions that are filed for LIFE Legalization purposes significantly differ from regular I-485 filings. A special instruction supplement, Supplement D, has been issued to assist applicants with the application process and should be followed by all applicants. Applications for LIFE Legalizations benefits must be mailed to a lockbox address in Chicago, irrespective of whether the applicant resides in the US or abroad.

To obtain a work authorization, those LIFE Legalization applicants that are in the US may also submit a completed Form I-765 Application for Work Authorization, with the appropriate fee, to the same lockbox address in Chicago. Form I-765 may be submitted either concurrently with or subsequent to the filing of Form I-485.

LIFE Legalization applicants residing in the US who wish to travel abroad while their applications are pending, must file a Form I-131 (Application for Travel Documents) to apply for and receive "advance parole" from the INS. As noted above, those applicants who are subject to a final order of removal, deportation or exclusion must also file and obtain approval of an additional Form I-212 (Application for Permission to Reapply for Admission after Deportation or Removal) prior to departure.

E. Subsequent Interview

If a LIFE Legalization applicant appears eligible to adjust to LPR status, a personal interview may be required. During the interview the applicant will have to demonstrate basic citizenship skills including at least a minimal understanding of ordinary English and a knowledge and understanding of the history and government of the United States. In lieu of this English and "citizenship" demonstration, an applicant may submit proof of education such as a high school diploma, a GED diploma, or an official certification from a state recognized, accredited learning institution in the US that the applicant is attending or has attended for at least 1 academic year or equivalent thereof and whose curriculum has included at least 40 hours of instruction in English and United States government and history. The language and civics requirements may be waived at the discretion of Attorney General because of the applicant's age or disability.

F. Decisions, Denials, Appeals

The applicant will be notified in writing of the INS decision on his or her adjustment application. If the adjustment application has been approved, the applicant may first receive or be advised of the process for obtaining temporary evidence of alien registration; a Form I-551 Permanent Resident Card will be mailed at a later date. If the application is denied, an applicant and his or her attorney or representative will be given written notice stating specific reasons for the denial. All appeals from decisions of denials of applications under LIFE legalization must be filed within the prescribed period as provided for in the Interim Rule.

As noted above, certain spouses and children of LIFE Legalization applicants may be eligible for Family Unity benefits under the LIFE Act Amendments. A detailed analysis of those provisions will be provided in Part 2 of this Article.

PLEASE NOTE: THE ABOVE INFORMATION IS VERY GENERAL AND DOES NOT CONSTITUTE LEGAL ADVICE. FOR SPECIFIC ANALYSIS OF YOUR CASE, YOU SHOULD CONSULT AN EXPERIENCED IMMIGRATION ATTORNEY.


About The Author

Alexander Nisengolts is an Illinois attorney. A graduate of Northwestern University and the University of Illinois College of Law, he practices immigration and business law in the Chicago area.

Born in Lviv, Ukraine, Mr. Nisengolts immigrated to the U.S. with his family at the age of 13. He speaks fluent Russian and Ukrainian and understands several other European languages. He has spent several years working in Kazakhstan (Central Asia) and has a keen appreciation of different backgrounds and cultures and the aspirations of people who want to immigrate to the United States.

Mr. Nisengolts may be contacted at 847-738-4209 or at nisenlaw@hotmail.com


Share this page with a friend Share this page


Immigration Daily: the news source for
legal professionals. Free! Join 35000+ readers
Enter your email address here: