The Illegal Immigration Reform and Immigrant Responsibility Act (“IIRAIRA”) was passed nearly one year ago, and I am still besieged with inquiries regarding what effect the “three and ten year bars” will have on potential green card applicants present in the United States. But, I understand the aliens’ confusion considering the vast amount of misinformation being disseminated. Part of the confusion stems from hastily drafted legislation from a politically motivated Congress. Then the problem is compounded by the INS’ interpretations of these poorly drafted laws. Of course, the INS is rarely correct in its interpretation of new laws and some parts of the law may be declared unconstitutional while many other parts interpreted by INS may be struck down by the Courts over the next ten years or more.
What does the law say?
Section 212(a)(9) of the Immigration and Nationality Act (INA) as amended by IIRAIRA provides that any alien who, after April 1, 1997
(1) was unlawfully present in the United States for a period of more than 180 days but less than one year, voluntarily departed the United States, and again seeks readmission within three years of the alien’s departure, or
(2) has been unlawfully present in the United States for one year or more, and who again seeks readmission within ten years of the date of such alien’s departure or removal, is inadmissible.
There are exceptions in the law which provide that no time shall be considered as part of an “unlawful stay” during which the alien
(1) was a minor (under 18);
(2) had a good faith application for asylum pending
(3) had an application for “change of status” pending
(4) was a beneficiary of the family unity program; or
(5) certain battered spouses.
The law states clearly that in order to be inadmissible, an alien necessarily must have departed the United States. “Departed” is the operative word. Therefore, if someone is in the United States unlawfully for more than six months or one year, the bars will only affect them if they “depart” for some reason, and are not exempted under one of the exceptions or waivers discussed in this article.
Why would someone have to depart the United States?
One reason a person would depart the United States after spending more than six months in unlawful status would be to obtain an immigrant visa. Most people who have overstayed their visas, or entered the United States without inspection do not intend to return to their home country, at least not until they are assured that they can reenter after departing from the United States.
Why would a person eligible for an immigrant visa depart the United States?
Most people already in the United States , who become eligible for an “immigrant visa” would rather file an application for “adjustment of status” with the INS than return to their country of origin to suffer consular processing and its attendant delays. Under Section 245(a) a person with an immigrant visa petition with a current priority date may file for adjustment of status. Generally, the law bars adjustment to
(2) aliens who have worked without authorization,
(3) have overstayed their I-94,
(4) aliens in transit and,
(5) entered without inspection.
There is an exception from item number 2 and 3 above that is for “immediate relatives” or persons who are seeking adjustment based on a petition as the spouse, parent or child of a United States Citizen. They may adjust status regardless of their overstay.
What about the “penalty” for persons “out of status?”
Despite the general prohibition of persons who are out of status, or violated the terms of their visas, or entered without inspection, Section 245(i) effective October 1994 to September 30, 1997 allows persons otherwise barred from adjusting their status under 245(a) to adjust their status of they pay the regular $130.00 filing fee plus a penalty fee, currently $1000. Therefore, persons eligible to adjust using the fine would not have to depart the United States to obtain their permanent resident status, and would not be subject to the “three and ten year bars.”
What happens if 245(i) expires?
Presently, Section 245(i) is set to expire on September 30, 1997. However, persons who file before September 30, 1997 will be able to adjust using that law, even if INS does not interview them for the green card until after September 30, 1997. As of now, persons who filed for adjustment and paid the fine before to September 30, 1997 are entitled to adjust their status, inside the United States.
Will 245(i) be extended?
Recently, the Senate Commerce, State and Judiciary Committee finished preparing their appropriations bill for presentation to the entire Congress. The Senate Subcommittee’s bill contains a permanent extension of Section 245(i). This is encouraging news. But, at the same time, the House Subcommittee, spurred by racist Lamar Smith (R-Texas) introduced its bill containing no extension of 245(i). Mr. Smith has gone to Washington with an inflammatory letter urging Congresspersons to vote against an extension of 245(i) because according to Smith it “encourages illegal immigration, and rewards unlawful aliens.” As of now, we cannot be sure whether 245(i) will be extended even with the support of the INS and State Department. Also, at least one official at the INS said “Congress intended to have the three/ ten-year bars apply even if the alien did not leave the United States, but due to poor drafting it did not come out that way.” This official said the INS would seek a technical correction to change it, but so far I have not seen any proposed bills in Congress to make this change.
Where does that leave us – confused and unable to make decision on whether to stay or to leave. If 245(i) is not extended, and if the courts uphold the new bars, then aliens who have an approved visa petition from other than a U.S. spouse or adult children, i.e. labor certification, brother & sister petition, etc., need to evaluate whether to stay or leave. As for those who have a spouse or parent who are either a U.S. Citizen or Lawful Permanent Resident, they may qualify for a waiver if they can establish exceptional hardship to that qualifying dependent. However, INS has not yet defined what is “exceptional hardship.” Also, if one seeks a green card through Suspension or Cancellation of Removal, the bars do not apply. There are many different situations, i.e., leaving the country on Advance Parole after September 27, 1997 that may trigger the three/ten year bar. Any alien who entered without inspection (EWI) will also have to leave the United States to get a green card. And what about entering the United States using someone else’s name? Is that EWI? Many issues will not be settled for years to come. Let’s pray that Section 245(i) is extended permanently by Congress and most of the bar problems will go away.