NEW “LIFE” LAW PROVIDES IMPORTANT

BENEFITS TO OUT-OF-STATUS IMMIGRANTS

On December 21, 2000, the President signed a new immigration law, the Legal Immigration and Family Equity Act (LIFE).  This new law will make it possible for some people who are illegally in the United States to become permanent residents.

First, some background.  Generally, a person who has remained in the U.S. without legal status for more than one year and who then leaves the U.S. is barred from returning to the U.S. for a period of ten years.  The period of exclusion is three years for a person who has remained in the U.S. illegally for more than a year but less than six months.  A person who has remained illegally in the U.S. for less than six months is not barred from returning.

Many people who are in the U.S. illegally for more than six months may become eligible to immigrate (obtain a “green card” or permanent residence).  Their employer may sponsor them based on a shortage of U.S. workers in their occupation, or a family member may file an immigrant visa petition for them.  However, if they leave the U.S. to apply for their immigrant visa at a U.S. Embassy or Consulate abroad they will trigger the 3-year or 10-year bar (remember, the bar only applies if they leave).

Before the LIFE act, those people also could not apply for their green card in the U.S. (“adjustment of status”).  There were some exceptions to this rule, such as a person who is sponsored by a U.S. citizen husband or wife.  Generally however the law prevented adjustment of status for a person who was out of status.   Also such a person could not apply from overseas because leaving the U.S. would trigger the 3-year or 10-year bar.  There was therefore no way for a person to become a permanent resident if he or she had been in the U.S. illegally for more than six months (unless that person waited outside of the U.S. for 3 or 10 years).

The LIFE act changes that, and permits adjustment of status for those illegally in the U.S.  However, there are some important restrictions.  First and foremost, papers to start the green card process (an immigrant visa petition or labor certification application) must be filed by April 30, 2001.  Second, with some exceptions, the applicant must be able to prove he or she was physically present in the U.S. on December 21, 2000.  And third, the applicant must pay a penalty of $1,000.

There is not much time left.  Those who are eligible for U.S. permanent residence on the basis of their employment or a family relationship must file the immigrant visa petition or labor certification application by April 30, 2001.  People eligible include (but are not limited to):

·        Those with employers that are willing to sponsor them.

·        Brothers or sisters of U.S. citizens.

·        Unmarried children of green card holders.

·        Children (whether married or not) of U.S. citizens.

·        Spouses of green card holders.  

·        Investors.

·        Ministers of religion and other religious workers.

The INS has made it clear that the LIFE law is not an amnesty program, and that those who are in the U.S. illegally are still subject to deportation until they file their application for adjustment of status.  Those who submit papers to start their green card case to take advantage of the LIFE provisions therefore run the risk of deportation before their immigration case can be completed.  Those risks should be explored fully with an attorney before proceeding.  However, the risk of not filing before April 30, 2001 may be to give up forever the ability to obtain permanent legal status in the U.S. (without first leaving the U.S. for ten years).

The LIFE Act also creates a new “V” visa, which enables spouses and minor children of green card holders to come to the U.S. and obtain employment authorization before their immigration case is completed.  Also, those already in the U.S. can get the V status and employment authorization, even if they are currently out of status.

There are several significant restrictions to the V visa.  First, the immigrant visa petition (I-130) must have been filed at least three years before the V visa or status can be granted.  Second, the I-130 must have been filed before December 22, 2000.