April First Is Here, Now What?

Since the passage of the Illegal Immigration Reform and Immigrant Responsibility Act (“IIRAIRA”) on September 30, 1996 aliens in the United States have been waiting in anticipation for the changes the new law would bring on April 1, 1997. This is the date that many of the Act’s provisions become effective. Perhaps the most alarming occurrence following the passage of IIRAIRA is the panic that has resulted from widespread misconceptions about the law, and misinformation disseminated by certain “notarios” and even some attorneys as to the new law’s scope. I believe that such fright creates even more misunderstandings about the new law, and that a discussion of the provisions most likely to affect immigrants in the U.S. is necessary to defuse the panic and provide some peace of mind.

The first point to be made is that April 1, 1997 is not a “deadline” as many people have been led to believe. April 1, 1997 is the day that many new provisions of the law went into effect, but is does not mark a cut-off for the filing of applications with INS, such as “adjustment of status” applications. Most people who are currently eligible to adjust their status to that of a lawful permanent resident (“green card” holder) will be eligible to file for and receive their green cards irrespective of whether they file before or after April first.

The bulk of inquiries I have received regarding the new law of late have to do with the “three and ten year bar” to readmission for persons who have been in the United States in “unlawful status” for six months or more. The law states that persons who have been in unlawful status for six months will be barred from “readmission” for three years, and those in unlawful status for one year will be barred for ten years. The INS will most likely use this law to bar “adjustment of status” as well as “readmission,” since applicants for adjustment of status are subject to all of the grounds of inadmissibility as aliens seeking entry at the border.

First, April 1, 1997 is the starting point from which the total length of time an alien has spent in unlawful status is calculated. No time spent “out of status” prior to April 1, 1997 will be considered against anyone. Therefore, the first date on which the bar could conceivably affect an alien is September 28, 1997, or six months after April 1, 1997. Presumably, applicants for adjustment of status who filed before going out of status for six months but after April 1, 1997 will still be permitted to adjust their status, since the filing of an application for adjustment places an alien in a non-deportable status. Aliens with applications pending are also entitled to obtain INS work authorization and parole visas for readmission after travel abroad.

Next, current law allows for persons “out of status” to remain in the United States and adjust their status if eligible, despite the fact that they are or have been out of status for many years. Section 245(i) cures previous violations of status such as overstaying a visa, entry without inspection and unauthorized employment which formerly would bar adjustment. The cost to stay in the United States as opposed to returning to one’s home country to receive an immigrant visa is an additional filing fee of $1000. While this law is set to sunset in October 1997, it is very likely that Congress will extend the law in October due to the massive revenues the INS is receiving under this provision. Aliens who avail of Section 245(i) and file prior to September 30, 1997, even if the law is not extended, will still be able to adjust their status according to a recent INS memorandum. If INS doe not, this firm will file an appropriate action in the U.S. District Court to enjoin the Service.

Furthermore, there are exceptions to the three and ten year bar, as well as a waiver provision, such that many people who are eligible to adjust their status at some point in the future will still be allowed to adjust their status, with or without Section 245(i). The INS will not count any time spent in unlawful status while an alien was a minor for the purposes of the bar. Any time spent in unlawful status while under the age of 18 is not relevant.

No period of time in which an alien has a bona fide application for asylum pending with the INS will be counted against them. The INS however, will construe time spent out of status while an asylum application is pending against an alien if the alien has worked without authorization. This should not affect many people who filed their asylum applications prior to January 1995 since those persons were entitled to INS work authorization upon filing the asylum application.

There are also exceptions for certain battered spouses and children of citizens or lawful permanent residents, and the law provides an exception if an alien has filed an application for change or extension of status prior to the expiration of his previous status, and has not worked illegally in the United States.

Finally, many aliens who have either a qualifying permanent resident or U.S. Citizen relative in the United States will be able to apply for a waiver of the three and ten year bar in conjunction with an application for adjustment to status or readmission into the United States. A qualifying relative is the spouse or son or daughter of a United States Citizen or lawful permanent resident if the alien can establish that their qualifying relative will suffer an “extreme hardship” if the alien is not allowed to adjust status or be readmitted into the United States.

The best advice I can offer my readers is DO NOT PANIC. April 1, 1997 is not a “deadline” to file papers with INS, marry a citizen, or do anything else. Rather, April 1, 1997 is a starting point for a new set of rules to go into effect. Instead of doing something rash, people concerned with the new law should consult with an experienced immigration attorney to ascertain whether the “new law” applies to them at all, and if so, how they can get around it. Only a creative and capable attorney can guide you through these technical new rules.