A New Window Toward Permanent Residence is Opening: Reinstatement of 245(i) Included
December 21, 2000

By the time this column goes to print, Congress will have finished up its business for the year and President Clinton will have likely signed a new budget bill which includes major immigration legislation allowing for the possibility of permanent residence for many individuals now living illegally in the U.S. First and foremost, however, it should made clear that the new law is not an amnesty law. Except as discussed below, the new legislation does not grant amnesty to any class of undocumented individuals.

Highlights of the New Law

Section 245(i) Reinstated Through April 30, 2001:

The provision of law that previously (through only January 14, 1998) granted expanded immigration benefit possibilities to the undocumented population has been revived through April 30, 2001. That is, despite your illegal immigration status (be it as a visa overstay, entering with no visa at all, or “jumping ship” and entering as a crewman), you will have a chance to eventually adjust your status toward U.S. permanent residence without ever departing the U.S. IF you commence some sort of family based, or employment based immigration filing prior to April 30, 2001. Upon commencement of the final stage, adjustment of status, the applicant will be eligible to pay a financial penalty, now at $1,000.00 (although likely to increase), as opposed to having to face the legal and logistical difficulties that come with being forced to appear at an overseas embassy for immigrant processing.

What type of petition must be filed and how long will it take for me to obtain my permanent resident status, or at least a work permit?

For those pursuing their permanent status by way of a job offer, it still may be a matter of a couple years before even a work permit will be available, and 3 or 4 years before a green card is within reach . That is because the process will involve having to find an employer to commence a process of a) proving the unavailability of U.S. workers to fill the skilled or professional position at issue (labor certification) and b) proving that you possess the necessary skills to fill that position. However, with the right type of job offer and work experience, an out of status individual with no U.S. family member to petition them, is given new life by this law, as the possibility of permanent status here in the U.S. is now within grasp.

Nurses, Physical Therapists, Religious Workers: Workers in these professions who are living in the U.S., whether in status or not, are also given expanded options to pursue their permanent residence without ever leaving the U.S. – except in even a shorter period of time than specified above, as proof of the unavailability of U.S. workers for the position is not required in such cases. So, for workers in these professions living in the U.S., with or without status, and who do not wish or cannot return home for immigrant processing, Section 245(i) may be the answer you are looking for. Of course, these professionals will also need an employer to commence the process, however for those in the healthcare professions, finding a petitioning employer is a problem that should be easily resolvable.

Whatever your skill or profession, out of status individuals must have a process commenced by April 30, 2001 in order to take advantage of 245(i)’s benefits.

FOR THOSE WITH PETITIONING U.S. FAMILY MEMBERS: if your U.S. family member has already filed an immigrant petition on your behalf, there may not be any new, additional step to take or any new benefit offered by the legislation. The beneficiary of the family petition will still have to wait in the long family preference visa lines (ranging from 4 to 25 + years – except for spouses and under 21 children of U.S. citizens, and parents of adult U.S. citizens who have immediate visa availability), however, the final processing of their case (adjustment of status) can be facilitated here in the U.S. without ever having to depart. However, those living in the U.S. in an undocumented status and previously did not have a family based petition filed on their behalf can now avail themselves of the benefits of 245(i) – with the possibility of never having to depart the U.S. and appear at an embassy abroad in order to obtain their immigrant status.

Again, the class of individuals eligible to take advantage of the new law include all family preference visa beneficiaries as well as the spouse and under 21 year old children of U.S. citizens, and parents of adult U.S. citizens, regardless (with very few exceptions) of how you entered the U.S. and or legal status: including those who overstayed their visitor, student or work visa, entered without a visa, entered as crewman and/or jumped ship, or in any way engaged in unauthorized employment.

General Work Visas Available to Spouses and Minor Children of Immigrants with Petitions Pending More Than 3 Years

If you are the spouse or under 21 year old child of a U.S. permanent resident, and you have been waiting for more than 3 years for a Family 2nd preference visa as the beneficiary of an I-130 relative petition, you will now have a chance to:

1. IF OUTSIDE THE U.S., immediately obtain a “V” visa to enter the U.S. to live and work while you wait for an immigrant visa to become available – with final immigrant processing eventually to be concluded in the U.S. and without having to return for embassy processing OR
2. IF ALREADY IN THE U.S. (legally or illegally) immediately apply for “V” status so as to allow for legal status and employment authorization while waiting for a Family Second Preference to become available, again, with final immigrant processing to be eventually concluded in the U.S. and without an appearance at an U.S. embassy or consulate overseas.

Expansion of K-1 Fiance Visa Category to Include Both OVerseas Fiances and Spouses

Although it is not entirely clear how the new K-1 visa will be processed, any long wait a U.S. citizen’s overseas spouse or under 21child and must endure during the petitioning process may be alleviated by the expansion of the K-1 fiancé visa. For example, the spouse or under 21 child of a U.S. citizen awaiting immigrant processing in the Philippines now often ends up having to wait as long as 12 months before they are finally issued their visa. With the new expanded K-1 visa, it appears such a long wait may be avoidable. Factors such as lengthy INS processing times in the U.S. for the underlying I-130 petition as well as understaffed and overburdened U.S. Embassy and Consular posts leading to delays in visa appointment, appear to be addressed by the new expanded K-1 eligibility provisions. The objective, overseas spouses and under 21 year old children of U.S. citizens, will wait a lot less than 12 months before they are able to obtain a visa and travel to the U.S. to join their U.S. family member.

Late Amnesty Applicants Qualify to Adjust Status in U.S. and Finally Be Accorded Immigrant Status

Individuals who are members of the “late amnesty” class action lawsuits such CSS, LULAC or Zambrano, may finally be eligible to obtain lawful permanent residence. To this point, such applicants qualified only to renew their work permits on a yearly basis. Some of these applicants even had this benefit taken away as a result of several unfavorable court rulings. Now, with the new legislation, Congress decided to take matters into their own hands, and give these class members some finality.

The explanations set forth above are only highlights of the new law. Exactly how your own status may be effected may depend on the specific circumstances surrounding your case. Accordingly, careful attention needs to be paid to how the specific language of the legislation (and to be released regulations) applies to facts that are particular to your case. Thus, before acting to obtain a benefit under this new law, make sure your decision in proceeding is an informed one.

Also important, be very careful about who you pay and trust in obtaining services to take advantage of an immigration benefit under the new law. Many of you reading this column may very well not be eligible for any new benefits, and that is important to know since there will be many unscrupulous people in your community waiting to steal the money of a desperate and misinformed public. Remember, neighborhood consultants, or nice old ladies at church may very well seem to be the most honest and forthright, but they are not regulated by the state and have no license to lose if a complaint is filed against them. On the other hand professionals, such as attorneys, do have a license to lose. So, it may be worth your while to consult an attorney BEFORE handing your money over to the neighborhood thief who is selling a service to obtain a non-existent immigration benefit. That way, at least you will get a professional opinion about whether the money the non-professional is demanding will go toward a bona fide service and a bona fide immigration benefit.

For certain, more details and questions will be addressed in future columns, so stay tuned.