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HIGHLIGHTS OF THE 1996 IMMIGRATION
LAW
by Michael J. Gurfinkel, Esq.
On September 30, 1996, President Clinton signed
a new law affecting immigration, called the Illegal Immigration
and Immigrant Responsibility Act (IIRAIRA). It revises, changes,
eliminates, and expands existing immigration laws in numerous
respects. The meaning and effect of many of the provisions of
the new law are still subject to various interpretations and debate,
as well as further changes, modifications, corrections, and the
like from Congress, the INS, and the courts.
The following are highlights of some of the provisions
of this new law.
1. Three-year and ten-year bars to
admission/re-entry. Aliens unlawfully present in the U.S.
for more than 180 days (approximately 6 months), but less than
one year, and who "voluntarily departed" the
U.S., are inadmissible to the U.S. (Meaning they cannot return
to the U.S.) for three years from the date of their departure.
An alien who had been unlawfully present for one year or more
and "again seeks admission" to the U.S., is inadmissible
for ten years from the date of their departure or removal.
Many people who are illegally in the U.S. are very
concerned about this three/ten-year bar to admissibility. Does
it mean that they can't get legalized for three or ten more years?
The new law discusses this three/ten-year bar to admissibility
in cases where an alien "voluntarily departed",
or "who again seeks admission". Therefore, this
law applies to situations where an alien had been unlawfully present
in the U.S., and then, for some reason, left the U.S.,
and now seeks to come back again. However, if the alien does
not leave the U.S., but instead continues to stay in the U.S.,
this three/ten-year bar to admissibility may not apply, since
they did not "depart" the U.S., and are, therefore,
not again seeking to be admitted to the U.S.
2. Expedited removal (deportation)
of aliens who entered U.S. without inspection. Aliens
who entered the U.S. without inspection (i.e. snuck across the
border) who are in the U.S. less than two years, can be
removed (deported) from the U.S. without any further court hearing
or review, unless they have a legitimate basis for applying for
political asylum. Under existing law, there are numerous procedural
safeguards to aliens who entered without inspection, such as court
hearings, appeals, etc. The 1996 law would allow immigration
officers, in may cases, to remove (deport) such people without
further court hearing or review.
3. Suspension of deportation requires
ten years of continuous physical presence in U.S. Under
the new law, suspension of deportation is now called "cancellation
of removal". The requirements for cancellation of removal
include:
a. Continuous physical presence in the U.S. for
not less than ten years (Under the old law, suspension
of deportation required only seven years of physical presence).
b. The person has been of good moral character during
that entire ten-year time period. (This is the same as existing
requirements for suspension of deportation).
c. The person has not been convicted of certain
offenses under immigration law. (This is the same as existing
requirements for suspension of deportation.)
d. The alien establishes that removal (deportation)
would result in "exceptional and extremely unusual hardship"
to the alien's spouse, parent, or child, who is a citizen of the
U.S., or a green card holder. (Under old law, the alien could
show "extreme hardship" to themselves,
or to a spouse, parent, or child who is a citizen or green card
holder. Now, instead of being able to show "extreme hardship",
it must be "exceptional and extremely unusual hardship".
In addition, it does not matter if the alien will have personal
hardship. What matters is hardship to certain family members
only.
Also, computation of the period of continuous physical
presence in the U.S. ends or stops when an alien is served with
a Notice to Appear or Order to Show Cause. Under old law, if an
alien had been served with an order to show cause before they
met the seven years of continuous physical presence in the U.S.,
they could continue to count the time in the U.S. after having
been served with an order to show cause towards meeting the
seven-year requirement. For example, under the old law, if a person
had been in the U.S. for six and a half years, and then had been
placed in deportation proceedings, but the proceedings were delayed
for six or more months, they could then add that additional six
months to the time they have been in the U.S., which would then
equal the seven years of continuous physical presence. Under the
new law, people cannot count the time they are in the U.S. after
they have been served with a notice to appear. So, if a person
had not been in the U.S. for ten continuous years at the time
they were served with a notice to appear, they would not
be eligible for the new "cancellation of removal".
4. Strict enforcement of affidavits
of support. The new law provides for strict requirements
for affidavits of support. (In the past, many people (i.e. family
members) would sign affidavits of support, but an alien, once
in the U.S., would apply for public assistance, and nothing was
done to the sponsor. Under the new law, the government can
go after the sponsor to collect and/or be reimbursed for any public
assistance received by the alien.) Among the new requirements
are:
a. The affidavit of support must be signed as a
legally binding "contract".
b. The sponsor (the person signing the affidavit
of support) must provide support to the alien at an annual income
that is not less than 125% of the Federal poverty line during
the time in which the affidavit is enforceable.
c. Affidavits of support must be legally enforceable
against the sponsor by the alien or the Federal, State, or local
governmental agencies.
d. If the sponsored alien receives certain types
of public assistance, the sponsor must reimburse the government
for that public assistance. If the sponsor refuses to do so, the
government can bring a lawsuit against the sponsor to enforce
the affidavit of support, and collect from the sponsor.
e. In all cases, the petitioner must submit an affidavit
of support even if there will be co-sponsors or if the person
is poor, re tired, etc.
f. The petitioner must be domiciled or living in
the U.S.
5. No "Consulate shopping"
for visa overstays. If an alien enters the U.S. on a non-immigrant
visa, remains in the U.S. beyond the period of authorized stay
(the time specified on his I-94), and wants to obtain a new non-immigrant
visa (as opposed to a permanent green card), he must go back to
his home country to have that new non-immigrant
visa issued. In the past, people typically entered on a visitor's
visa, the visa expired, and they became TNT's. Later, they may
have found an employer to petition them for a temporary working
visa (H-1B), or a school, so they could get a student visa (F-1).
Since they had been out of status, they were required to exit
the U.S. and have the visa issued at a nearby Consulate. Many
people went to U.S. Consulates in Mexico or Canada in order to
have that H-1B or F-1 visa issued.
Under the old law, if you have been in the U.S.
illegally for only a few months, nearby consulates have the discretion
to entertain you and grant you a visa. The new law now requires
Filipino TNT's to go back to Manila, and other aliens to their
home country, for issuance of that new non-immigrant visa, even
if you overstayed only one day.
CONCLUSION
There are many people who are still illegally in
the U.S., and have still done nothing to legalize their
status. Many have the attitude that if they wait long enough,
the laws will get better. I think that they are fooling only themselves.
While there is no reason to "panic", there definitely
is reason for people in illegal status to do something to finally
legalize their status. The various changes to immigration laws
are only making it tougher to legalize. If you wait, it may be
too late!
My advice is to seek the assistance of a reputable
attorney, who can assist you in legalizing your status and help
you realize your dreams in this Land of Opportunity.
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