More Follow Up Discussion on the New Immigration Law – Particularly, Section 245(i).
February 8, 2001

Follow up discussion on the finer points of the new immigration law is definitely in order. Conversations I have with new and old clients inquiring into the exact nature of the new law reveal the rampant spread of misinformation and myth in many immigrant communities. At the risk of repeating some of the information featured in previous columns, below is my response to some of the more common misunderstandings and questions:

Q: That new amnesty law – how do I apply and where can I pay the $1,000 penalty?

A: First and foremost, the new law contains no new amnesty provisions, per se. It does, however, provide a vehicle – section 245(i) – for almost all undocumented and visa overstays who have been in the U.S. as of December 21, 2000 to obtain their lawful permanent residence, sooner or later, without ever departing the U.S. Sooner is defined as within 2 years or so, and later can mean up to 30 years – if you are a Filipino counting on your U.S. citizen sibling’s petition.

But, to take advantage of Section 245(i), the essential component is an employer or family member submitting an immigration or labor certification filing on behalf of the individual at issue by April 30, 2001. If the filing is submitted prior to this date, then the applicant will be permitted to complete the final stage of their immigrant processing in the U.S., and without having to return to a U.S. Embassy overseas.

And, about the $1,000.00 penalty – it will not come into play until the final stage of processing is reached. For some the final stage is immediate, such as in the case of the spouse of a U.S. citizen (although most visa overstays will not have to pay the penalty in this case – with the exception of jumped ship crewmen and those entering without inspection) and for others, not until after the immigrant petition at issue is approved, and a visa becomes available in their Family or Employment Based Preference Category.

Q: By submitting an employment or family based filing by April 30, 2001, do I become “legal” and immune from deportation?

No, but it is certainly understandable how someone could be led to believe this to the case. If the government is saying that the individual can complete final stage of their immigration process in the U.S., that must mean that the applicant is legal immediately and throughout the duration of the process, right? No. Actually, it is only if the INS does not catch up with you until the very last stage of processing is reached that the applicant can proceed onward with his case and “adjust” their status to that of permanent residence.

Technically, the applicant only becomes “legal”, once they reach the final stage of processing (adjustment of status) and obtain an Employment Authorization Document (“EAD”, also known as a “work permit”). But to reach that stage, the family or employment-based filing must be approved, and a visa must become available.

Time estimates for visa availability following the approval of the initial I-130 relative, or I-140 work, visa petition and eligibility to institute final stage adjustment of status processing and obtain an EAD for various classes of applicants include:

“Immediate Relatives” (spouses and under 21 year children of U.S. citizens, and parents of adult U.S. citizens) – visas are immediately available and therefore eligibility to institute the final adjustment of status stage is immediate.

Family First Preference (over 21 year old children of U.S. citizens) – for Filipinos, 10 to 15 years; for most other foreign nationals: 2 to 3 years

Family Second Preference A (spouses and under 21 year old children of lawful permanent residents) – for all foreign nationals, including Filipinos: 4 to 6 years

Family Second Preference B (over 21 year old children of permanent residents) – for Filipinos, 6 to 8 years, and for most other foreign nationals, 4 to 6 years,

Family Third Preference (married children of U.S. citizens): For Filipinos, 10 to 15 years, and for most other foreign nationals, 3 to 5 years,

Family Fourth Preference (siblings of U.S. citizens): For Filipinos, 20 to 40 years, and for most other foreign national, 8 to 12 years.

Employment Based First, Second and Third Preference (includes aliens of “extraordinary” and “exceptional” ability, international executives, professionals and skilled workers: For most foreign nationals, including Filipinos, Immediate Visa Availability, and final stage adjustment of status processing can be instituted immediately following the approval of the immigrant worker petition.

Unskilled Workers (includes nursing assistants, home health care workers and many classes of household workers): all foreign nationals, approximately 4 to 5 years.

Q: If I do not submit some sort of filing prior to April 30, 2001, will I be automatically deported or become ineligible for future immigration benefits?

A: To the first part, absolutely not. Although those residing illegally in the U.S. are always subject to being placed in deportation proceedings, their chances of such an occurrence taking place are not in the least bit increased by their failure to submit a family or employment based filing as outlined above.

To the second part, certainly by commencing a process now, your world of immigration options for the future can be expanded to one degree or another and taking such a step would be ideal at this time. But by no means however, will the failure to initiate a filing by April 30, mean you will be forever barred from becoming a lawful permanent resident of the U.S (such as when, and if, an amnesty bill is ever enacted). Moreover, submitting a filing just for the heck of it, where there is no legal or practical basis to obtain an immigration benefit, can also be a mistake and a waste of money. So, yes, in some cases, taking no action whatsoever at this time can also be a legitimate option.

Q: The reverse of the previous question: By submitting a family or employment based filing, doesn’t an applicant place himself in harm’s way, by revealing his whereabouts and illegal status to the U.S. government?

A: My experience has shown that the initiation of a process as described above generally does not trigger a Department of Labor or Immigration investigation or the commencement of deportation proceedings against the alien. And taking into account the various risks involved, a chance to avail oneself of immigration benefits under this new law would clearly seem to be worthwhile.

Q: For non-Section 245(i) immigration benefits included in the new legislation, is the April 30, 2001 also the deadline for applying?

A: Absolutely not. Guiding rules and regulations have yet to even be published for the “late amnesty” (CSS, LULAC, Zambrano) class members seeking to apply for permanent residence. The same can be said for those seeking to benefit from the new V visa provisions (spouses and under 21 year old children of permanent residents waiting more than 3 years for immigrant visa availability) and K visa provisions (now including overseas spouses and under 21 year old children of U.S. citizens). By early spring, a mechanism by which eligible applicants can take advantage of these benefits will hopefully be in place.