It never fails. Whenever a new immigration provision is presented to Congress for consideration, or is proposed by the President or some other official in the Executive Branch, the media takes the ball and runs with it. It’s either presented as something it is not, or simply misunderstood to be something it’s not. Either way, the US audience, ranging from the general American John Q. Public demographic to the vulnerable 12 million undocumented demographic, gets excited, in different ways, and for different reasons. Notably, this provision will impact only limited number of prospective applicants, applicants who are ineligible to “adjust” status/ undergo all permanent residence processing in the U.S. and who are willing to visit a U.S. consular post in their home country for their “green card” interview.

The latest news has to do with an Obama administration initiative for processing “waivers of inadmissibility” and it proposes to streamline processing of certain applicants for permanent residence who under current law, must leave the US for an extended period for their final green card/ interview, and appear before a US consular officer in their home country. Instead of facing a 3 months or so wait to receive a decision on their waiver application while outside the US, the new proposal will allow for a wait as little as a few days outside the US, since the 3 months of processing is now being proposed to take place before the applicant’s departure.

And what is being decided in this period is an “I-601 waiver” application to excuse, or “waive”, the individual’s previous period of unlawful presence in the U.S. and consequent 3 or 10 year bars to reentry, where cases are approved only if the applicant can demonstrate that his denied reentry will pose extreme hardship for his U.S. citizen or permanent resident spouse or parent. Of course, there’s no guarantee all applicants for a waiver will be approved under this proposed program, but this new procedure will no doubt be of great comfort to families by letting them know ahead of time if the main obstacle (3 year bar) to their loved one’s reentry has been removed – and repeat, before the applicant leaves the US for their interview in their home country. Thus, if the applicant’s waiver application is denied, that decision will be known before any trip outside the US takes place. The applicant will then know there is no reason for the applicant to appear for their interview before a US consular officer in their home country, since he will know he will indeed be subject to a bar to reentry that has NOT been waived.

Again, this new provision is only at the proposal stage, and a final, working rule has yet to be implemented. In the meantime, no waiver filings will be decided in the US as proposed above. If implemented though, the rule will not impact applicants currently outside the U.S., who will continue to be subject to ordinary processing procedures now in place. Further, since this processing change is being presented as an act of Executive/Administrative “rulemaking” and not legislation, there is no need for congressional approval. All developments regarding implementation of this provision will continue to be reported on here.

PUBLISHED January 12, 2012 – “IMMIGRATION LAW FORUM”
Copyright © 2012, By Law Offices of Richard Hanus, Chicago, Illinois

Published: January 20, 2009

So, you have made the decision that being in the U.S. without legal status is better than being in your home country with all the legal status in the world. And you continue to hope that President Obama can advance his goal of comprehensive immigration reform and that your particular circumstances will be covered by some prospective legislation. While we await such legislation, are there measures the overstay / undocumented foreign national can take to “legalize” their status and obtain U.S. lawful permanent residence (a.k.a. obtain a green card)?

For the Visa Overstay

With the exception of individuals who entered the U.S. on a K (fiancé) or “Crewman” visa, visa overstays are generally eligible to apply for “Adjustment of Status” and undergo permanent residence processing in the U.S. (without having to return to their home country) under the following circumstances:

1. You marry a U.S. citizen or a lawful permanent resident who becomes a U.S. citizen,
2. you are under 21 years old and you are the child, or step child (as long as step relationship was established prior to your 18th birthday) of a U.S. citizen or a lawful permanent resident who becomes a U.S. citizen, or
3. you are the parent of an over 21 year old adult U.S. citizen.

Additionally, if you were the subject of any type of family preference or employment/labor based immigration application submitted prior to April 30, 2001, or in some cases, January 14, 1998 (pursuant to INA Section 245(i)), you will be able to eventually complete all permanent processing in the U.S. via Adjustment of Status, upon visa availability.

For the visa overstay seeking permanent resident processing in the U.S. by way of a new job offer, things are much more complicated. First, you must be “grandfathered” under INA Section 245(i) – which means you or one of your parents must have been the subject of some sort of family or employment/labor based immigration filing submitted prior to April 30, 2001 or January 14, 1998. Then, you must find an employer to file paperwork on your behalf; this employer will likely be required to demonstrate the unavailability of U.S. workers to fill the position at issue (there are a few exceptions for some professions, such as Registered Nurses and Physical Therapists). From there, you will be looking at a wait of at least a few years toward even an employment authorization. So, employment based avenues are indeed viable for the overstay, just challenging in terms of logistics and time.

For the Foreign National Who Entered the U.S. “Without Inspection” or “EWI”

Simply put, you must be covered by INA Section 245(i) as described above. If you are covered by Section 245(i), the avenues available are identical to those available for the visa overstay. If you are not covered by 245(i), then all you are left with is waiting for immigration reform, or taking a chance at a visa processing at a U.S. consular post in your home country.

The most common EWI risk-taking scenario involves the EWI who marries a U.S. citizen and, as opposed to waiting for immigration reform, he elects to undergo immigration processing at a U.S. consular post in his home country. In order for the EWI to be granted the immigrant visa to reenter the U.S., he must be granted a “waiver of inadmissibility”. You see, those who are in the U.S. without status and depart, generally face a multi-year (up to 10 years) bar to reentry, unless U.S. Department of Homeland Security grants a waiver (plain English – forgiveness) based on the extreme hardship the U.S. citizen spouse and/or parent may face in the event the foreign national is denied a visa. The grant of a waiver is anything but certain, and the result depends entirely on an immigration officer’s assessment of whether the level of hardship presented is “extreme” enough. Furthermore, the parties will never know the answer in advance of the foreign national departing and appearing at the U.S. consular post.

In Removal Proceedings

If you are unlucky enough to be placed in removal proceedings, most of the above rules continue to apply, and your fight to remain in the U.S. will depend on whether you fit into any of the above classifications. BIG EXCEPTION: For those who:

1. have been in the U.S. for more than 10 years – either as an overstay or EWI ,
2. have a U.S. citizen or lawful permanent resident spouse, child or parent,
3. are of good moral character and
4. can demonstrate that their forced departure will cause “exceptional and extremely unusual” hardships to one or more of their U.S. family members, a defense to removal (known as Cancellation of Removal) and a green card, may be within reach.

Certainly #4 is not an easy standard to satisfy, but at the very least, those who are threshold eligible will have their day in court and a chance for thorough due process. (Note: visa overstays and EWI’s may also have other forms of relief available in removal proceedings, such as political asylum.)

The above discussion is certainly not exhaustive, but it does cover the most common scenarios facing foreign national visa overstays or EWI’s. For the most reliable and conclusive feedback in your particular set of circumstances, it is advisable to seek reputable legal counsel.

PUBLISHED January 20, 2009 – “IMMIGRATION LAW FORUM”
Copyright © 2009, By Law Offices of Richard Hanus, Chicago, Illinois

For citizens of North American countries such as Canada and Mexico, the path toward obtaining a nonimmigrant visa or permission to work in the United States is often much simpler than applying for the H-1B. Since the enactment of NAFTA (the North American Free Trade Agreement) in 1994, workers in certain employment categories have been welcomed to the U.S. along with their families in one-year increments, with the freedom in some cases to renew indefinitely. As we approach 2009 – the year by which the NAFTA accords were set to be finalized – the parameters of the TN (Trade-NAFTA) program have continued to expand. As of last month, TN applicants are eligible for initial approval of up to three years (as opposed to only one year), again with the option in some cases of unlimited renewal (in up to 3-year increments), and applicants’ immediate family members may join them on derivative TD status for the same amount of time.

How do I apply for the TN Visa? How do I know if I’m eligible?
Those eligible for the TN program include professional workers (for example, accountants, engineers, lawyers, pharmacists, scientists, teachers, and certain other professionals and skilled workers) within the categories defined by NAFTA who have received an offer of employment from a U.S-based company.

The process of gaining entry differs slightly for Canadian and Mexican citizens, with Canadians facing less red tape. For Canadians, no visa is required and documentation to facilitate entry in TN/TD status can be presented to Customs and Border Protection officials at most ports of entry. For Mexicans, a visa is required, and a visa application with supporting documentation must be presented at a U.S. consular post in Mexico. In both cases, the required documentation includes:

• detailed letter from the employer featuring a company profile and the specifics of the job offer
• professional and/or educational credentials, e.g. licenses, degrees, etc
• proof of citizenship
• necessary fees

As stated, Mexican applicants are required to first obtain a visa through a U.S. Consular post, which involves completing an online Nonimmigrant Visa Application for each member of their family (self included), scheduling an interview with the post, paying the necessary fees, completing a biometrics requirement, and ensuring that all of the requisite detailed documentation is prepared in advance of the interview. Decisions are issued shortly after the interview.

How does the TN Visa differ from the H-1B?
The TN program can be a nice alternative for U.S. employers and North American workers, because the requirements are simpler than those for the H-1B program. Also, NAFTA’s job categories are broader, allowing more non-degreed workers such as “scientific technicians” and “management consultants” to be approved for temporary admission. Additionally – and quite significantly – the TN program is not subject to the yearly cap that makes the H-1B so difficult to obtain. Moreover, because there is no deadline or availability start-date for TN applications, the approvals are decided on a “rolling basis.” This means there is nothing like the annual “race” for H-1B visas, and the entire TN process is, in general, much faster and more efficient.

Why does this program exist? What is the point of NAFTA?
Ultimately, the North American Free Trade Agreement was created to foster economic relations between Canada, Mexico, and the U.S. by eliminating barriers to trade – such as tariffs on agricultural goods, and barriers to the exchange of labor between the countries. The TN program allows U.S. firms to hire workers from Mexico and Canada more easily, and the increase to three years for initial approval – finalized last month – will cut down on time and paperwork for firms who wish to employ foreign labor on a longer-term basis.

For final U.S. immigrant visa processing to be completed, most foreign Registered Nurses are required to present evidence of special certification confirming the bona fides of their educational and professional credentials along with their competence in the English language. The “VisaScreen” certificate is issued by the Commission on Graduates of Foreign Nursing Schools, also known as CGFNS.

As of February 14, 2007, CGFNS has declared that R.N.’s who received their licensure in the Philippines following their passage of the June 2006 licensure exam will not be eligible to be considered for VisaScreen certification. This pronouncement was made after an investigation in the Philippines uncovered compromised test results arising from significant irregularities in the testing process. It is important to note that this decision only affects those nurses whose R.N. licensure in the Philippines was based on their passage of the June 2006 exam, and no other exam.

CGFNS has determined, however, that affected nurses who still wish to pursue their VisaScreen certification may still be eligible by passing the equivalent of Tests 3 and 5 of a future Philippine nursing exam.

Section 221(d) of the Immigration and Nationality Act requires immigrant visa applicants to undergo a physical and mental examination so as to determine whether the applicant has a medical condition that would make him/her ineligible for admission into the US. HIV, tuberculosis, and other contagious diseases are tested for, and applicants are also generally questioned about their use/abuse of controlled substances, with the latter line of inquiry becoming the subject of much controversy as of late.

U.S. immigration law deems, without exception, “drug abusers or addicts” ineligible for admission into the U.S. Exactly what constitutes a drug abuser or addict is an issue that has come under question recently, as immigrant visa applicants at U.S. consular posts abroad, with increasing frequency, are being turned down after admitting their isolated use or experimentation with any number of “recreational drugs”, such as marijuana.

Although “experimental use” of drugs, according to well established policy, should not warrant a finding that the applicant is a drug abuser or addict, trends at various consular posts reveal that anything beyond the one-time use of marijuana is now being considered non-experimental and thus a basis for visa denial.

Overly aggressive and sometimes deceptive questioning by examining physicians for applicants at US consular posts across the globe is being reported, particularly in Manila, Philippines and Juarez, Mexico (again, to be distinguished from CIS processing of permanent residence/adjustment of status applicants in the U.S., where the problematic scenarios have not been at play) Such strategies are leading to overly harsh results, with some applicant’s visa processing being delayed for a three year period, while they are forced to undergo a drug rehabilitation programs after admitting to more than 1-time use of a controlled substance in the prior three years. Other U.S. consular posts have been reported to just flat out deny the visa, with the applicant given no hope for visa issuance at any time in the future.

It is important to note that U.S. consular posts across the globe have been anything but consistent in how they carry out their questioning of applicants regarding past drug use and how the “drug abuser or addict” basis of inadmissibility is being interpreted and applied.

Over the past year or so, processing times for family based, I-130 immigrant petitions have skyrocketed. Of particular significance are the extended processing times for visa petitions in the “Immediate Relative” or “IR” category, where visas are immediately available and the main obstacle to visa processing are stateside CIS service center delays, delays that have stretched to as long as 2 years. In the past month, however, CIS headquarters has issued a directive instructing the four regional CIS service centers to give first priority to adjudicating I-130 petitions in the IR category or other family preference categories where a visa is immediately available. The class of family members that come under the IR category and who will most benefit from this new policy are overseas spouses of U.S. citizens, under 21 year old children of US citizens and parents of adult U.S. citizens.

As stated, the IR category includes spouses of U.S. citizens, under 21 year old children of U.S. citizens and parents of over 21 year old U.S. citizens. For relatives such as these, no line for visa availability exists, just a line to have the I-130 petition approved by a CIS service center and ultimately forwarded to a US consular post for final immigrant visa processing.

It is important to note though, for those IR family members already in the U.S., immigrant processing in the U.S. is usually available (“adjustment of status) and the above CIS service center delays do not come into play since such filings are ultimately processed through a local CIS office, with employment authorization and sometimes advance parole travel documents available for applicants while the filing is pending.

But for those IR family members waiting overseas, processing times are slowly starting to shrink. For example, a U.S. citizen who is trying to facilitate the entry of his overseas spouse, under 21 year old child (or step child), or his parents, no longer will face a 2 year wait before the I-130 petition will be reviewed at a CIS Service Center, such as the Nebraska Service Center (the facility processing I-130 petitions filed by mainly Midwestern based U.S. family members). To this point, processing times have been reduced to 1 year for the IR category, and I expect that in the coming year, initial processing will be cut down to 6 months or less. And such reduced processing times may obviate the need for U.S. citizens to file the additional K-3 petition in order to speed up the arrival of an overseas groom or bride. All in all, with the implementation of the new directive, total processing time for the overseas IR family member can be expected to eventually be reduced to 12 months or less, taking into account CIS Service Center processing, National Visa Center processing and then finally the overseas’ U.S. consular post scheduling.

What does the new directive mean for other I-130 petitions for non-IR category relatives?

The I-130 for family members in any of the Family Preference categories (see below) will not be reviewed or processed until there is visa availability. That does not mean there will be additional delays for such family members or that such family member’s will be negatively impacted for the most part. Instead, CIS will not waste its resources in giving immediate attention to I-130 petitions for family members who will have to wait a period of anywhere from 4 to 30 years for visas to become available anyway.

More specifically, the following is a breakdown of the family preference categories and the approximate visa line for each category:

First Preference – adult unmarried child of U.S. citizen; 4 years, except much longer for those from Philippines (14 years) and Mexico (12 years)

Second Preference A – unmarried, under 21 year old child of Lawful Permanent Resident and spouse of Lawful Permanent Resident; 4 years, except longer for those from Mexico (7 years)

Second Preference B – unmarried, over 21 year old child of Lawful Permanent Resident; 9 years, except longer for those from Mexico

Third Preference – married child of U.S. citizen; 7 years, except longer for those from Philippines (16 years) and Mexico (12 years)

Fourth Preference – sibling of U.S. citizen; 12 years, except longer for those from Philippines (approximately 20 years)

Thus, for example, no longer will a U.S. citizen file an I-130 petition for an adult unmarried child and receive an approval notice within 2 years, and then be told that an additional period of years to wait for visa availability will be required. Instead, although the I-130 petition filing date will establish the family members place in line (priority date), adjudication of the petition will only take place once that family member’s place in the relevant visa line becomes current – and as set forth above, that could mean anywhere from 4 to 20 years.

The following sequence of events may sound familiar. First, the U.S. citizen or lawful permanent resident files an I-130, Alien Relative Petition on behalf of a family member living outside the U.S., or maybe even living in the U.S. – with or without status. The Immigration and Naturalization Service (now the Bureau of Citizenship and Immigration Services or CIS) eventually issues a notice confirming that the petition has been approved and shortly thereafter the National Visa Center forwards a correspondence informing the parties that visas are not available and that no travel plans should be made for the immediate future. And then, after some 5 to 15 years, a large packet of paperwork, including Form I-864 Affidavit of Support and other bio data forms, is forwarded to the parties by the National Visa Center in anticipation of visa availability and preparation for immigrant visa interview scheduling at a U.S. consular post in the alien relative’s home country.

For petitions filed on behalf of spouses or under 21 year old children of a U.S. citizen, or the parents of adult U.S. citizens, those thick National Visa Center packets are forwarded to the parties only weeks after I-130 petition approval, since there is always visa availability in the IR, “Immediate Relative” visa category and the scheduling of immigrant visa interviews at consular posts, such as the U.S. Embassy in Manila, take place in a matter of months (approximately 2 to 4 months).

Often, however, that overseas relative on whose behalf the I-130 was filed has already made their way to the U.S. one way or another, and are living here (with or without status) by the time that thick NVC packet is issued. And to the astonishment of many clients who have appeared in my office, the alien relative may very well qualify to undergo all further processing in the U.S. before the CIS, via “adjustment of status” proceedings, with no need to travel back overseas to appear at a U.S. consular post. If that is the case, then a very different approach to responding to those thick National Visa Center document requests must be taken.

Too often, I have seen individuals blindly comply with those NVC requests, including the payment of unnecessary immigrant visa and affidavit of support processing fees to the U.S. Department of State. If it is the case that the petitioned relative is in the U.S. and is eligible for “adjustment of status” processing at a local CIS office, then the parties should respond to the NVC by advising them of the petitioned relative’s intention to pursue further processing in the U.S. Once it is determined that the petitioned relative is clearly eligible to proceed with adjustment of status in the U.S., then all further paperwork and processing fees will instead be forwarded to their local CIS office (such as INS Chicago) at the appropriate time and not the U.S. Department of State. The reason: the National Visa Center is merely a conduit for future overseas consular post processing of immigrant visas, and is not in any way involved with permanent residence processing of aliens currently in the U.S. who are eligible to “adjust their status” before the CIS and without having to return to the U.S. consular post, such as the U.S. Embassy in Manila.

Once the U.S. Department of State receives such notification, the petitioned relative’s file will be noted accordingly, and no further documentation requests will be issued. And for the parties at issue, unnecessary paperwork and processing fee requirements are avoided.

Lastly, in making important decisions regarding your own or your family member’s rights under governing immigration laws, it is imperative that the decisions be informed ones. Therefore, it is advisable that the effected parties obtain as much information and feedback as possible from ALL sources, including the government as well as at least one reputable, licensed immigration attorney.

By federal statute, roughly 500,000 family-based immigrant visas and 140,000 employment based immigrant visas become available each fiscal year, which begins on October 1 and runs through September 30. This number does not include the 55,000 immigrant visas that become available each year through the Diversity Visa Lottery Program, a program which excludes citizens of several countries including the Philippines.

Despite the large number of available immigrant visas, long lines have formed in all of the family based categories since the demand for these visas is far greater than the supply. Excluding the a) spouses of U.S. citizens, b) the under 21 year old children of U.S. citizens and c) the parents of adult U.S. citizens – all of whom always have immediate visa availability, the waiting period for a family preference visa ranges from 5 to 25 years depending on the category and the country. Since the Philippines (along with Mexico) and is one of two countries where the demand for U.S. immigrant visas is particularly strong and disproportionate to the rest of the world, special visa lines are formed.

According to a recent statement by a high ranking U.S. Department of State official, however, it is expected that immigrant visa numbers for family based preference categories will move forward at an especially rapid rate in the coming few months. This condition is due to the extended delays in the distribution of immigrant visas over the past few months arising from post-September 11 agency mandated security checks for all applicants. And since much fewer visas were processed as a result of these delays, greater numbers appear to now be available for issuance.

Importantly, no visa lines exist at this time for any of the employment based immigrant visa categories, including unskilled workers. Thus, visa processing (whether in the U.S. or at a U.S. consular post abroad) for any employment based émigré can take place in a relatively short period of time, ranging from 6 months (for professionals such as nurses and physical therapists) to 2 or 3 years (for other types of workers where the unavailability of U.S. workers to perform the job must be documented). However, according to the State Department official, it is also expected that a visa numbers may start to become unavailable, or at least a cut off date established, for the increasingly popular unskilled worker category – a category that allows immigrant visas a variety of positions including domestic and elder care workers.

In response to several recent highly publicized bureaucratic blunders, the U.S. Immigration & Naturalization Service has taken dramatic action in announcing the implementation of several new rules that will significantly impact those entering the U.S. on nonimmigrant B-1/B-2 visitor visas. Under the new rule, visitor visa holders will now have far fewer options to extend their stay, or change the terms of their stay.

Restrictions For Those Entering on Visitor Visas

The B1/B-2 visa, commonly known as the tourist or visitor’s visa, has many purposes. Individuals seeking entry into the U.S. on such visas usually do so for vacation or business meeting purposes and have traditionally been granted a 6 month period of admission, with the option of filing for at least 1 extension period of 6 months, or changing their status to some other nonimmigrant classification such as student or professional worker. Under the new rule just announced, the INS will be stricter in granting periods of admission that are “fair and reasonable for the completion of the purpose of the visit”, with the norm being a grant of 30 days. The visa holder upon inspection, however, will have an opportunity to persuade the INS official that the nature and purpose of their visit justifies a lengthier period of admission.

Once admitted into the U.S., B-1/B-2 visitors seeking to extend their stay will now only be granted an extension if “unexpected or compelling humanitarian reasons” can be demonstrated. Examples cited by the INS include medical treatment or a delay in the conclusion of a business matter, and the applicant must provide documentary proof of their financial capacity to carry on the purpose of their continued stay. Although retirees with vacation homes in the U.S. may be given special consideration, a maximum of a single 6-month extension period is provided for under the new INS rule (as opposed to the previous rule that generally allowed for up to two 6-month extension requests).

Limitations on Changes of Status Requests

In the past, under many circumstances, those entering on B-1/B-2 visas had the option of changing to student (F-1 or M-1) status without departing the U.S., appearing at a U.S. consular post abroad and reentering on an F-1 or M-1 student visa. And individuals applying for such a change of status, often commenced their academic program prior to the INS’ approval of their change of status application. Under the new INS rule, this option will be severely restricted in several ways. First, only those visitors who advise the INS inspector upon entry that they are entering the U.S. to visit various schools and plan on filing such a change of status request will continue to have the change of status option. Visitors expressing this intention will have their admission card (Form I-94) marked with a “prospective student” notation, and only under this circumstance will the B-1/B-2 visitor have the option of filing for a change to student status.

Additionally, visitors who are admitted as “prospective students” and apply to change their status will not be allowed to commence their academic program prior to the INS’ completion of processing. In this regard, the INS has announced that procedures will be implemented to ensure that processing of change of status (to student status) applications will take no more than 30 days.

Importantly, these new rules will only impact visitors entering after April 12, 2002, the date the regulation is set to take effect.

By now many have heard that the U.S. House of Representatives passed a new Section 245(i) provision and that all we are waiting for is the President’s signature. What most have not heard is the fact that the proposed provision will benefit a very limited class of illegal aliens. And whether Section 245(i) will actually be reenacted in any form whatsoever, remains to be seen.

What does the new, Section 245(i) proposal provide?

First of all, a history lesson. Remember, Section 245(i) is not an amnesty!!! Do not let anyone tell you otherwise. Instead it is a vehicle by which certain individuals who are in the U.S. as visa overstays or who entered without inspection can convert their status to that of a U.S. lawful permanent residence without ever having to return to their home country to complete processing – as was historically required under the law.

The first ingredient, however, is the right type of family member or employer to commence the process. With that ingredient in place, SECTION 245(i) can be of help to the following classes of aliens:

1. those in unlawful status (either as overstay, without inspection or crewman) who are trying to obtain their U.S. permanent residence by way of an employer’s immigration filing,
2. those in unlawful status (either as overstay, without inspection or crewman) who seek to obtain their permanent residence by way of an of a Family Based Preference petition (other than as the spouse of a U.S. citizen, under 21 year old child of a U.S. citizen, or as the parent of an adult U.S. Citizen) and
3. those who entered without inspection or as crewman, and are a) the spouse of a U.S. citizen, b) the under 21 year old child of a citizen or c) the parent of an adult U.S. Citizen)

And, as mentioned many times in this column previously, those unlawfully in the U.S. who continue to be eligible to adjust to permanent resident status in the U.S. WITHOUT Section 245(i) are MOST VISA OVERSTAYS who a) are married to U.S. citizens or soon to be U.S. citizens, b) are the under 21 year old children of U.S. citizens, or c) are the parent of an adult U.S. citizen.

Previously, the essential requirement to qualify under Section 245(i) is having been the beneficiary of some kind of family or employment based petition or labor certification filing prior to April 30, 2001. Such individuals are “grandfathered” in, and can even proceed toward permanent residence through a subsequent, completely different family or employer based filing commenced after April 30, 2001.

As for the proposal presented by the House of Representatives, not much new and exciting is added. Specifically, two new classes of applicants stand to “benefit” – 1) family based applicants whose family relationship existed as of August 21, 2001 and an INS visa petition is filed on their behalf within the 120 period following the law’s enactment, or November 30, 2002 – whichever is earlier and 2) employment based applicants whose employers commenced an immigration or U.S. Department of Labor filing before August 21, 2001.

Clearly the number of beneficiaries in Group # 1 will be limited, especially since potential applicants will not have a chance to conform their behavior (e.g. get married to a U.S. citizen) in response to the law being enacted. And Group # 2 will include an even more limited number of beneficiaries, since not many people would have had employment based filings submitted on their behalf after April 30, 2001 and before August 21, 2001. That is because after the earlier Section 245(i) deadline of April 30 came and went, there existed no good reason to proceed with a new employment based filing – of course unless the person was equipped with supernatural abilities to know that a new Section 245(i) would later be enacted, such that his post-April 30, but pre-August 21 filing would be of help to him.

In conclusion, following the scurry of immigration-related activities in Congress recently, it is important to remember the following points:

1. As of March 22, 2002, no new Section 245(i) provisions have been enacted, although the House of Representatives has agreed on a proposal,
2. Even if Section 245(i) is reenacted, we must remember that Section 245(I) IS NOT AN AMNESTY,
3. If and when Section 245(I) is reenacted, the exact language of the legislation must be carefully examined to determine who benefits. As discussed above the class of beneficiaries to benefit from the legislative proposal currently on the table is extremely limited at best. However, it is very possible that a new Section 245(i) enactment with more expansive coverage may come to be,
4. Section 245(i) is not needed, and has never been needed, for the vast majority of visa overstays seeking to adjust to permanent resident status in the U.S. if they are the a) spouse of a U.S. citizen, b) the under 21 year old child of a U.S. citizen or c) the parent of an adult (over 21 year old) U.S. citizen.