The New Immigration Law – A Discussion of the Most Common Inquiries and Concerns
January 11, 2001
It comes as no surprise to me that the new immigration provisions recently signed into law, the Legal Immigration & Family Equity Act (“LIFE”), have generated a great deal of confusion. The population impacted most by this legislation is a desperate and anxious one, and given those conditions, the tendency is for the affected individual to react in any number of ways where a clear sense of things is hard to achieve. The feelings I have witnessed among my clientele fill the spectrum: fear, hope, caution, optimism, worried sick or worst of all, fantasy. Those who are the most desperate (like those with a sick relative they need to see overseas) are the ones who hear only what they want to hear, and the ones most in danger of being guided in the wrong direction or swindled. So, in an effort to shed some more light on this law and clarify what options are truly available, I will discuss some of the more often posed questions, concerns and inquiries over the past couple weeks.
Q: What is Section 245(i)? Does this provision grant an amnesty to illegal aliens?
A: To the second part, NO. No amnesty. However, those who have been in the U.S. as of December 21, 2000, whether legally, as a visa overstay, undocumented after entering without inspection OR as a AWOL crewman, have a chance to commence a process that will ultimately allow them to obtain U.S. permanent residence without having to return overseas for final processing – and regardless of their unauthorized stay and employment in the interim. Depending on the type of process commenced, the process can be completed anywhere from 2 years to 10 + years and beyond.
The process can be commenced through the applicant’s U.S. citizen or permanent resident spouse or parent or U.S. citizen adult child or sibling. Or, the process can be commenced through an employer, preferably one that is offering the applicant a “skilled” or professional position. In either case, a process should be commenced prior April 30, 2001.
If either of these processes has been commenced on your behalf prior to this date, including those commenced many years ago, you are included under 245(i) and are eligible to complete your permanent residence processing in the U.S. and without returning abroad.
Q: Can I get a work permit while I wait for completion of my processing?
A: It depends. Usually, the most immediate avenue toward a work permit (or “Employment Authorization Document” or “EAD”) will be through marriage to a U.S. citizen where processing can take as little as 90 days or so and the scheduling of a final hearing for permanent residence, about 2 years – at least in the Chicago area.
For those applying through other types of family petitions, the wait to obtain a work permit can range from 2 years to 20 years. It just depends on the Family Preference category involved.
For those commencing an employment based filing, the wait for an EAD can range from 6-8 months for professionals such as nurses, physical therapists to 1 1/2 or more years for other professionals or skilled workers, to as long as 6 or 7 years for the unskilled worker. Total processing time for permanent residence can range from 2 years to 8 years.
Again, to take advantage of 245(i), a filing must be commenced prior to April 30, 2001. And just as important, the applicant will maintain eligibility and have the freedom to commence a new application based on a new family relationship or job offer after April 30, 2001, again, as long as some sort of bona fide family or employment based filing was submitted prior to April 30.
Q: Where do I apply?
A: For Chicago area applicants, family based filings will be submitted with either INS Chicago or INS Nebraska. Cases filed through a U.S. citizen spouse or an adult U.S. citizen child, usually are submitted with INS Chicago, and others such as I-130 Alien Relative Petitions filed by other family members, get filed with INS Nebraska.
For most employment-based applicants in the Chicago area, the Alien Labor Certification is commenced with the Illinois Department of Employment Security. The process is a bit different for other workers such as R.N.’s, P.T.’s and religious workers, where the process is commenced with INS Nebraska.
Q: If I commence a filing either through a family member or employer, will I be found out by the U.S. Immigration & Naturalization Service and deported before finishing whatever process I start?
A: In my 13 years of experience as an immigration lawyer, I can not remember a single incident where the commencement of either a family based or employment-based filing has resulted in the arrest and/or deportation of an illegal alien. Additionally, I have also never seen a case where an employer becomes the subject of an INS or Department of Labor investigation as a result of their commencing a filing on behalf of an employee or potential employee. That does not mean such a filing could never trigger an arrest or an investigation in the future or that by coincidence, the INS ends up placing the individual in removal proceedings around the time of the filing. However, given the great opportunities to be taken advantage of under the extension of Section 245(i), it would seem that the potential benefits in the vast majority of cases greatly outweigh whatever risks may be involved.
Q: If a family or employment based filing has been submitted previously (whether 30 days ago or 10 years ago), must a new filing be commenced in order to take advantage of the new 245(i) provisions?
A: No. The previous filing will “grandfather” you in for 245(i) eligibility. In fact, again, even if you wish to proceed under a new family or employment based category (presumably to take advantage of a new family or employment based relationship) after already submitting documentation prior to the April 30, 2001 deadline, the new later filing will be an acceptable avenue toward permanent residence, because the earlier filing will have “grandfathered” you in for eligibility under Section 245(i).
Q: What about the other provisions of the new LIFE Act?
A: Others who stand to benefit under the new legislation, including a) spouses and young children of permanent residents with pending petitions – waiting either in the U.S. and overseas, b) overseas spouses and fiancés of U.S. citizens, and c) class members in the “late amnesty” lawsuits known as CSS, LULAC and Zambrano, can expect to see implementing regulations published in the coming 90 days or so. These individuals, who are not necessarily effected by the April 30 deadline, can only commence a filing after these guiding regulations are published. Developments in this regard will be covered in this column.
PUBLISHED January 11, 2001 – “IMMIGRATION LAW FORUM”
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