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BETTER DAYS AHEAD FOR ALIENS? Part I
by Michael J. Gurfinkel, Esq.
Recently, there has been a series of developments
in U.S. immigration laws, policies, and procedures which should
provide a promise of better days for aliens seeking to live the
"American Dream". Recent court decisions, government
policy memoranda, and legislative bills are easing the pressure
on aliens who are out of status.
By way of background, the Illegal Immigration Reform
and Immigrant Responsibility Act (IIRIRA) of 1996 marked a dark
milestone for aliens. It was one of the most harsh laws ever passed
on immigration. That law eliminated many forms of relief and benefits
that were previously available to aliens, with some being applied
retroactively. IIRIRA also imposed harsh new requirements, making
it more difficult, or sometimes impossible, for aliens to either
come to America and/or to legalize their status. The mood of the
country in 1996 was very much anti-immigrant, and very few politicians
were willing to speak out, or risk their political career by taking
a pro-immigration stand.
Over the years, the pendulum is slowly, but surely,
swinging towards a "kinder and gentler" approach to
aliens and immigration. There are discussions of an amnesty and
amendments to IIRIRA, that would have been unheard of only a few
years ago. Here are some highlights of the many positive developments
in immigration:
1. Extension of Section 245(i).
Congress passed the LIFE Act in December 2000, extending Section
245(i) to April 30, 2001. Section 245(i) is a law that would allow
people who are out of status, jumped ship, worked without authorization,
overstayed, etc., to preserve their future ability to adjust status
(be interviewed for a greencard in the U.S.), so long as they have
a "properly filed" family petition or Labor Certification
Application before the expiration of the law. Section 245(i) was
of tremendous benefit to tens of thousands of illegal aliens, who
would have been required to return to their home country for their
visas, where they faced the possibility of being barred from returning
to the U.S. for at least 10 years.
2. Congress is very close to passing another
extension of Section 245(i). Everyone is watching, virtually
on a daily basis, concerning developments on the passage of a
further extension of Section 245(i). There are several versions
of a new Section 245(i) going through the various Senate and Congressional
Committees, and everyone is eagerly awaiting the passage of this
extension.
3. Grandfathering of Section 245(i) eligibility.
INS issued several memos stating that not only is a person eligible
for adjustment of status on the basis of a family petition or
Labor Certification filed before the expiration of Section
245(i), but the person could transfer their Section 245(i)
eligibility onto a new or different petition or Labor Certification
Application filed after the expiration of Section 245(i).
In addition, not only is the alien under petition eligible for
Section 245(i), but also the alien's spouse and minor children.
4. INS should not use Section 245(i) filings
to find and remove/deport aliens. In an April 27, 2001
memo, INS Headquarters instructed all of its field offices that
they "shall not initiate removal proceedings against an alien
who is eligible for adjustment under Section 245(i) if such action
is based solely on the filing of an immigrant petition, labor
certification application, or application for adjustment of status
filed by, or on behalf of, that alien, on or after the date of
this memorandum seeking to legalize the alien's status under Section
245(i)". In other words, INS is not supposed to use a Section
245(i) filing to find and/or deport aliens.
As you can see, there is a positive shift in law,
cases, and attitude towards aliens. We hope that this continues,
so that hard working aliens will finally be able to share in the
American Dream. In a future article, I will discuss more positive
developments.
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