As a preface, most of you are probably aware that the immigration law was substantially changed in 1996 by the passage of the illegal immigration reform and immigrant responsibility act (IIRIRA). Salient features of the IIRIRA may be found on my website at http://www.immigration-america.com.

As 1997 has gone by, Congress enacted further technical legislation and a broad revision of INA Section 245(i). Further, the INS, the State Department, and the Department of Health and Human Services through the Centers for Disease Control published and implemented new regulations which will also be discussed below. 1997 has been a year of substantial change in the implementation and application of the immigration law. Perhaps one of the most draconian provisions of the immigration law, relating to deportation (now called removal) also reared its ugly head in 1997. Finally, the legislation of 1996 created substantial new penalties for alien criminals, visa overstays, aliens entering without inspection (EWI’s) and out of status aliens. All these issues will be discussed below.

The sheer volume of the new laws and regulations involved, and the obvious size and space limitations of such this article make a detailed analysis impossible. This article does not purport to come even close to being an exposition of the entire law. It is obviously only intended to illustrate the salient new features of the law and cannot be construed as legal advice because the specifics of any immigration issue will vary from person to person.

Three Year and Ten Year Bars:

The IIRIRA makes an alien who has been out of status for 180 days beginning April 1, 1997 ineligible to adjust his or her status and receive an immigrant visa for a minimum period of three years after departure from the U.S.A. Aliens who were out of status and who left the country on or before September 27, 1997 would not be affected by this provision were they seeking to return with a valid immigrant visa. Therefore, if an illegal alien is currently in the country and departs the country at the present time, that alien would be barred for a minimum period of three years from re-entering the United States if an immigrant visa is available to the alien.

Likewise, aliens who have overstayed by over one year after April 1, 1997, or up till March 31, 1998 will be barred for ten years from returning to the United States under a immigrant visa. This ten year period will begin from the time they depart the United States.

Removal Provisions

Deportation has now become “removal.” The grounds for “relief from deportation” have now become grounds for “cancellation of removal.” There are separate cancellation of removal provisions for both resident aliens (green card holders) and non-resident aliens. The standards for the cancellation of removal for each class defer. The grounds for cancellation of removal have become extremely burdensome to meet. This is Congress’ response to the issue that immigration judges were perhaps becoming too lenient in granting relief from deportation to aliens who were in deportation proceedings.

New Affidavit of Support

Form I-864 is a new affidavit of support. It is required for all applications filed after December 19, 1997 or where the immigrant visa interview is going to be held at a overseas consulate after December 19, 1997. The Form I-864 is a very lengthy affidavit of support form. This form is intended to be a binding, enforceable legal obligation against the sponsor in case the alien who has been sponsored falls back upon public welfare. Pursuant to the Form I-864, even the income of immediate family members of the sponsor may be deemed to accrue to the principal sponsor for sponsorship purposes. Therefore, conceivably the income of the entire family could be attached in case of default by the alien. The Form I- 864 is a lengthy detailed document which together with supplementary documents should not be taken lightly.

New Health and Vaccination Requirements

In conjunction with the Centers for Disease Control, new health examination requirements are necessary for all immigrants. These requirements have been in effect since March 1997. As some of you may already know, the new requirement is the verification of vaccination for certain diseases. The INS panel physician must have verification of such vaccination or the immigrant will have to retake the vaccinations or show why he or she should not have to take the vaccinations either because of health or religious grounds.

Section 245(i)

Perhaps the biggest blow to family adjustment (adjustment means obtaining a green Card in the USA without having to leave the country and return with an immigrant visa issued at a United States Consulate overseas) and employment adjustment cases came with the “sunset” of INA Section 245(i). This provision, enacted in 1994, permitted out-of-status aliens who had an immediately available immigrant visa to obtain a green card in the United States without leaving the country. The original penalty levied under INA Section 245(i) was $650.00 per applicant. That penalty was subsequently raised by the IIRIRA to $1,000.00. The revenues were a important source of funding for the INS. Further, adjustment of status in the United States alleviated a considerable administrative burden both at the National Visa Center and at overseas consulates.

However, the anti-immigrant forces in Congress were instrumental in cutting off INA Section 245(i) completely. INA Section 245(i) endured a tortured existence from September 30th to November 14, during which time INA Section 245(i) was extended by a number of continuing funding resolutions in Congress. Finally, on November 26, 1997, the President signed into law the Commerce, Justice, State and Judiciary and related Agencies Appropriations Act for fiscal year 1998. That Act revised Section 245(i).

Section 245(i) is going to finally sunset on January 14, 1998. Any applications for adjustment of status based on immediately available immigrant visa numbers should be filed on or before that date. Furthermore, any pending labor certifications filed as of that date will also entitle the alien to adjust status in the future whenever the employment-based immigrant visa petition is approved by the INS. Finally, any pending visa application (I-130) for a relative, for example) that was filed on or before January 14, 1998 will allow the beneficiary to rely on INA Section 245(i) and adjust status in the future by payment of the penalty and filing fee for Form I-485 (Application to Adjust Status). Therefore, individuals who may be out of status subsequent to January 14, 1998 may still adjust their status in the future if they have a valid approved labor certification or immigrant petition that was filed prior by January 14, 1998.

It should be noted clearly that Section 245(i) is not an amnesty program. Many people believe that Section 245(i) permits them to pay a $1,000.00 fine to the INS and obtain a green card. This is simply not true. It should also be noted however that having a labor certification application filed or having an immigrant visa petition pending on or before January 14, 1998 does not prevent the INS from removing a alien who is out of status or has violated his status or is removable because of some offense.

Therefore, the only categories of individuals that have been “grandfathered” into the extension of Section 245(i) as stated above are individuals who have labor certification applications filed before January 14, 1998 and beneficiaries of visa petitions filed before that date.

Further benefit to employment-based visa applicants allows them to use Section 245(a) to adjust status if they have not been out of status for a cumulative total of more than 180 days. This is important in the case of employment-based applicants who may have inadvertently worked before receiving appropriate authorization from the INS, or may have been laid off for a certain period of time before finding a new employer, or for one reason or another fell out of status in the course of their employment.

New Fingerprint Requirements

The Appropriations Bill also included a provision that requires the INS to assume responsibility for all fingerprinting. This is an important issue because in many states there is not an INS office. Therefore for the time being the INS has designated certain law enforcement agencies to take fingerprints for INS purposes. In naturalization applications, the INS is not requiring that fingerprints be submitted with the application. Rather, the application will be submitted without fingerprints and after a few months when the INS has made arrangements for the fingerprinting, the INS will send all applicants the necessary documentation including instructions as to where the new fingerprints have to be taken. This is obviously going to delay an already very long and cumbersome naturalization process. Naturalization applications postmarked after December 3, 1997 must include fingerprints taken by a new application support center, to be indicated by the INS. For all other applications, the fingerprints should be taken by an INS authorized law enforcement agency.

Conclusion

The INS has its hands full with the various changes wrought by the IIRIRA and the Appropriations Bill. These changes come on the heels of the new removal and criminal issues generated by the Anti-Terrorism and Effective Death Penalty Act of 1996 (AEDPA). If anything, these changes are going to lengthen the processing time for all permanent immigration applications. For self-petitioning individuals, the new regulations create additional burdens and these burdens are certainly not to be taken lightly. Together with the new affidavit of support requirements, new fingerprinting and vaccination requirements and the sunset of INA §245(i), both employment-based and family-based immigration petitions have taken on a whole new set of burdens and vastly enhanced responsibilities.

Copyright, F. Sethna, Esq., 1997

About the author: Farhad Sethna was born in India. Now a U.S. Citizen, Mr. Sethna received his law degree at the University of Akron, School of Law and his MBA from the College of Business. Mr. Sethna’s practice is limited to business and immigration law. In addition to his law practice, Mr. Sethna is also an Adjunct Professor of Immigration Law at the University of Akron, School of Law. Mr. Sethna belongs to the Akron, Ohio, American and Immigration Lawyers Bar Associations and is a Trustee of the Asian-American Bar Association. He is serving on the Executive Committee of the Federation of India Community Associations, in Cleveland and is the editor of its monthly publication, the Lotus.