MORE ON THE “LIFE” ACT

In our February 2001 newsletter we discussed the Legal Immigration Family Equity (LIFE) Act, enacted on December 21, 2000.  The LIFE Act provides immigration benefits to those who 1) entered the U.S. illegally or 2) entered the U.S. legally but later violated (or will violate) their immigration status.  To take advantage of the LIFE Act, a person must file papers by April 30, 2001.  With time running out, additional information may be helpful to those who may be affected by this law.

At first glance, the LIFE Act helps only those who are in the U.S. illegally.  However, it can also help those who are currently in legal status but who may go out of status in the future.  That is, those who file a labor certification or immigrant visa petition before April 30, 2001 are eligible to apply for adjustment of status (a change to green card status) without leaving the U.S., even if they later violate their nonimmigrant status.

Without the benefits of the LIFE Act, a person cannot apply for adjustment of status to green card status if he or she,

·        Entered the United States illegally;

·        Worked in the United States illegally;

·        Failed to maintain continuously lawful status;

·        Entered under the Visa Waiver Pilot Program;

·        Entered as foreign crewmen; or

·        Entered as foreign travelers in transit without a visa.

Not every person who entered the U.S. illegally or who is out of status needs the LIFE Act. The law already provides that a person married to a U.S. citizen can apply for adjustment of status.  A minor child of a U.S. citizen can also apply for adjustment of status, even if he or she entered the U.S. illegally or violated legal status.  A parent of a U.S. citizen who is over the age of 21 can apply for adjustment of status, provided the parent entered the U.S. legally. A person who is applying based on employment is eligible for adjustment of status, provided that he or she entered the U.S. legally and was not out of status (and did not work without authorization) for more than 180 days.

This is not the first time that Congress set a deadline for filing a labor     certification or immigrant visa petition to allow those who are out of status to apply for adjustment of status.  In 1997, a law was passed to “grandfather” in those who applied by January 14, 1998.  As a result of that law, the INS developed rules that further clarify and define the law.  Since the LIFE Act provisions are almost identical to the 1998 law, the INS will use the rules it has already developed.  On March 26, 2001, the INS issued interim regulations that confirm those previous rules.  You can find the full text of the regulations on the government website at:

http://a257.g.akamaitech.net/7/257/2422/26mar20010800/frwebgate.access.gpo.gov/cgi-bin/getdoc.cgi?dbname=2001_register&docid=01-7373-filed.pdf

A spouse or minor child of the person for whom the labor certification or immigrant visa petition is filed is also eligible for adjustment of status.  The interim regulations confirm that the spouse or parent who is “grandfathered” does not need to be the person who is the primary applicant for adjustment of status.  Also, the spouse or minor children of a grandfathered applicant are not required to meet the physical presence requirement (see, our February newsletter: only the principal beneficiary of an immigrant visa petition or application for labor certification filed after January 14, 1998, and on or before April 30, 2001, needs to demonstrate his or her physical presence in the United States on December 21, 2000).

For example, assume that a person in valid H-1B status submits a labor certification before April 30, 2001.  However, he is later fired from his job, cannot find another job, and goes out of status for more than 180 days.  The employer withdraws the labor certification (because he is no longer working).  Later, his wife finds an employer that is willing to file a labor certification for her.  If the wife’s labor certification is approved, they can both apply for adjustment of status on the basis of her labor certification, even though the wife’s labor certification was filed long after the April 30, 2001 deadline. 

That brings us to a related point: the labor certification or immigrant visa petition does not have to be approved to get the benefits of the LIFE Act.  It just has to be filed.  If it is later denied, revoked or withdrawn, the applicant (and his or her spouse and minor children!) are still grandfathered in, and can later file (perhaps even many years later) for adjustment of status.

The only requirement is that the labor certification or immigrant visa petition is not “frivolous.”  The INS defines “frivolous” as “patently without substance.”  That is a very broad standard, and means that the application is not fraudulent (that is, false statements are not made in the application) and that there is a legal basis for the labor certification or immigrant visa petition.  In the case of a marriage-based petition, the marriage must be a real marriage and not entered into solely to get a green card.  There must be a legal basis for eligibility for a family-based petition.  For example, a person cannot apply for a grandparent or cousin, a permanent resident cannot apply for a parent or sibling, and a child under 21 cannot apply for a parent.  A labor certification must be based on a valid offer of employment: there must be a good faith expectation that the job will exist in the future.

However, later circumstances that lead to denial, revocation or withdrawal of the petition or application will not defeat the benefits of the LIFE Act.  A marriage may later break down and end in divorce.  An employment offer may be withdrawn.  The company may go out of business.  The labor certification may be denied because the applicants did not actively pursue it or because the Department of Labor determines that there are U.S. workers who are available to do the job.

Thus, by filing any non-frivolous labor certification or immigrant visa petition by April 30, 2001, the applicant secures for himself or herself, spouse and children the right to apply for adjustment of status at any time in the future.  That application for adjustment of status does not have to based on the labor certification or immigrant visa petition filed by the deadline, but can be based on any other type of later labor certification or immigrant visa petition filed for the applicant or for the applicant’s spouse.