About the new immigration law (01/11/98)

About the new immigration law

Questions and answers on the revision of Section 245(i) of the Immigration and Nationality Act prepared by Andre Michniak, a Philadelphia-based attorney.

Q: What happened to adjustment of status provisions under the new immigration law?

A: On November 26, 1997, President Bill Clinton signed into law a revision of Section 245(i) of the Immigration and Nationality Act. Section 245(i) is the provision that allows certain individuals who are eligible for an immigrant visa but are already in the U.S. to adjust their status in the U.S. rather than return to their home countries. These individuals now have until January 14, 1998, to file a visa petition or labor certification in order to be eligible to adjust in the U.S., unless they are deported before their immigrant visa number becomes current.

Q: Who can submit applications to begin the process of obtaining an immigrant visa (a green card)?

A: Anyone with a close family relationship or an employer willing to sponsor them.

Q: Who is eligible to use the revised Section 245(i)?

A: Anyone who files a visa petition with the INS as a family or employment-based immigrant, or anyone whose employer files a labor certification application with a local office of the Department of Labor by January 14. These petitions or labor certifications need to be approved before individuals can apply under Section 245(i) to adjust their status. Their visa number (based upon their order in the waiting line for visas) also needs to be current. We do not know what else will be required by the INS to establish eligibility for the revised 245(i).

Q: Who is not eligible?

A: Individuals who do not have the close family relationship required to file a family petition or whose employer is not willing to sponsor them for labor certification are not eligible to file. Also ineligible are individuals who are in the U.S. and participating in the diversity visa lottery (known as the "green card" lottery).

Q: If petitioners file before January 14, 1998, will they be protected from deportation until their priority date becomes current and they can adjust?

A: Section 245(i) has never protected an individual who is deportable. It merely enables these individuals to adjust their status in this country if and when they are eligible to do so. Persons who are here illegally or who have overstayed their visas are subject to deportation, and the revised Section 245(i) will not prevent such a person from being deported. It also does not protect employers who employ aliens without work authorization from investigation and sanctions by the INS.

Q: Does the new law affect petitions whose priority date is not current?

A: No. As long as the initial visa petition is filed before January 14, and the petitioner is eligible for a green card, he/she will be able to remain in the U.S. during the adjustment process, unless they are deported before their immigrant visa number becomes current.

Q: Aren't aliens who are married to U.S. citizens automatically eligible for a green card?

A: No one is "automatically" eligible. If someone is here illegally, and is now married to a U.S. citizen, but has not gone to the INS to get a green card, he or she may need to use Section 245(i) and may need to file before January 14, 1998. Such individuals should seek competent assistance from attorneys or legal service providers.

Q: If an immigrant files a petition before January 14 for a spouse, are his/her children under 18 automatically covered as well?

A: Generally, yes. Children are considered to be "derivative" beneficiaries in that situation. However, if children turn 18 before they can actually obtain a green card, they could lose their eligibility. These children should have separate immigrant petitions filed on their behalf before January 14, 1998.

Q: What happens to immigrants who are here illegally, but file their petition after January 14? If they return to their home country, won't they risk being barred from returning?

A: These immigrants could be barred from returning for three to 10 years. Unless the law is changed in the meantime, when their application becomes current, they must return to their home country so their application can be processed through U.S. consular offices.

Q: What happens to out-of-status immigrants who do nothing?

A: They remain illegal, and risk deportation and a bar on returning to the U.S. for three to 10 years.