As background, the IIRIRA was signed into law on September 30, 1996. It is a draconian measure aimed at controlling illegal immigration through – in some instances – penalizing legal immigrants. I do not oppose curbing illegal immigration. However, among other issues, I do object to the undue and unnecessary burdens on intending legal immigrants that lead to uncertainty, fear, and frustration. I also have a problem with the "summary exclusion" of intending asylum applicants. If the USA will not listen to these oppressed people, who will?
The following article summarizes in point form the effects of IIRIRA on various immigrant, intending immigrant and non-immigrant classes. Please note that many of the provisions of IIRIRA have not yet been specifically implemented through Immigration & Naturalization Service (INS) regulations. Therefore, as of the time of this writing, there may still be many unanswered questions.
Also please note that it is impossible within the scope of this limited article to cover each and every one of the details of the sweeping changes under the new law. Accordingly, I am writing this article to answer what I believe will be the majority of questions concerning the new law. Obviously, none of this should be taken as specific legal advice for your situation since everybody’s situation is different and the intricacies of the new law, the ramifications of regulations which have not yet been propounded and the interaction of the new law with the existing Immigration & Naturalization Act are all issues for serious review and consideration by an immigration professional. Therefore, consult an attorney if you have specific questions about the facts of your case.
- Penalties under the IIRIRA:
I have alluded to three year and ten year periods of exclusion in this article. Pursuant to the new law, any alien who remains in the United States without authorization from the INS for over six months from April 1, 1997 (that is, through September 30, 1997) is excludable from the United States for a minimum period of three years. Any alien who remains in the United States for one year or more after April 1, 1997 without the necessary INS authorization is excludable for ten years from re-entering the United States. These are extremely harsh provisions. These exclusionary rules may be waived only in cases of "exceptional and extremely unusual hardship" to the alien’s U.S. citizen or LPR spouse, parent or child. There are also other civil and criminal penalties under the IIRIRA.
- Visa overstays:
Any non-immigrant alien (B-1 business visitor, B-2 tourist, F-1 student, etc.) must depart from the United States at the conclusion of the authorized period of stay within the U.S. Failure to depart the U.S. in time could lead to severe problems. Perhaps the least severe of these problems is that the non-immigrant alien will not be permitted to apply for a visa to re-enter the United States in any country other than the country of his or her nationality. Therefore, out-of-status non-immigrant H-1B workers, for example, who are not nationals of Canada would not be able to go to Canada to obtain a re-entry visa under the H-1B classification.
Overstays may also result in long-term exclusions from re-entering the United States. These exclusions range from a minimum period of three years to a maximum period of ten years.
- Aliens who entered without inspection (EWI):
Aliens who entered without inspection are in a very tight spot. Up to September 30, 1997, such aliens may be able to adjust their status (convert to permanent residence, ie, get a green card) upon payment of a $1,000.00 penalty to the INS. The EWI alien must not be excludable for any other reason and must have an approved immigrant petition filed by a third party sponsor.After September 30th, this will not be possible. Section 245 (i) of the INA which permits such adjustment of status will cease to be effective after September 30, 1997.
As an example, a spouse of a U.S. citizen or legal permanent resident who entered without inspection must adjust status before September 30, 1997 under the new law or that spouse will be excluded from re-entering the United States for a minimum period of three years. (The new law does not require that the adjustment of status application be adjudicated by September 30, 1997, but the INS is taking the position that the application must be approved by that date.)
- H-1B applicants:
The H-1B process currently remains the same. The National Association of Manufacturers, in a lawsuit filed against the Department of Labor won a significant victory last year in connection with the Department of Labor’s labor condition application procedures. The new law has not imposed any additional restrictions on H-1B visa holders. Therefore, this category remains unaffected at least for the time being.
- Labor certifications:
At about the same time as the IIRIRA was enacted, the Department of Labor issued its "General Administration Letter" (GAL) 97-1. Per GAL 97-1 the labor certification process has been substantially restructured. Details of the change can be found in my related article "Hiring Aliens – An Update" which may be found on my website at http://www.immigration-america.com.
- F-1 University students:
While the provisions for pre-completion practical training, post-completion practical training and co-curricular practical training remain unaffected, the INS can crack down severely against students who do not maintain their status or violate the provision of their visa. Accordingly, any deviation from the required full-time course of study required of F-1 students in order to maintain status in the United States should be documented and approved by the international student advisor and any other appropriate authority at the students’ university.
- New affidavit of support:
The U.S. Government is understandably very concerned about immigrants who are supposedly "sponsored" by U.S. citizen relatives, then come to the United States, and are then left destitute or who apply for federal assistance immediately upon arrival. The sponsors in many instances do not take care of their immigrant relatives or live up to the obligations they have set forth in their affidavits of support for these new immigrants. Accordingly, the INS was empowered under the new law to devise a new affidavit of support which will be required of all sponsors who have applied for immigrant visas. The draft version of this affidavit of support, Form I-864 has already been developed by the INS. It is expected that this new affidavit of support will become a final requirement sometime in mid-May 1997.
Under new law enacted in 1996, a sponsor must have an Adjusted Gross Income (AGI) of atleast 125% of the "poverty income Guidelines" for the number of individuals in the sponsor and intending immigrant’s families. Thus, sponsors will have to meet a higher burden of proof, especially in "family unity" type cases.
- A parting shot – additional inoculations:
Due to the spread of contagious diseases in the USA, the IIRIRA has increased the list of diseases for which an intending immigrant must be vaccinated. Failure to prove the vaccinations to the INS examining physician would require the alien to take the necessary vaccinations or risk being found excludable. Please note this requirement applies only to immigrants, not non-immigrants (tourists, students, etc.).
There are many more changes to the immigration law both good and bad, implemented through IIRIRA. As stated above, this article does not summarize all of those changes. For specific advice on the circumstances of your individual case, you should consult an immigration attorney. However, the bottom line is very clear: an alien who is currently out of status had better look into methods to legalize his or her stay in the United States or risk long-term exclusion.