New Bars To Immigrating But There is Still Hope

Are you an immigrant who is unlawfully present in the United States because of an expired visa or because you entered the country without any visa at all? If you are an immigrant who falls in either category, there are certain changes in the Immigration Law which, at first glance, may seem to cause some worries and uncertainties. But in effect, these amended provisions may not be as devastating as they appear.

For instance, in an effort to control the perceived “floodgates of illegal immigration” into the United States, Congress recently amended certain provisions in the Immigration and Nationality Act. In particular, Congress amended a section of the INA entitled “General Classes of Aliens Ineligible to Receive Visas and Ineligible for Admission.” The amendments to this section made certain immigrants inadmissible to return to the United States for a period of three or ten years.

Under the amended law, immigrants who remain in the United States for six months after April 1, 1997 and then voluntarily depart the country, may find themselves inadmissible for future re-entry for a period of three years following their departure. Likewise, those immigrants who have unlawfully remained in the United States for at least one year after April 1, 1997, and then depart, will also be deemed inadmissible for readmission for the next ten years. Unlawful presence in the United States prior to April 1, 1997 will not be aggregated for the purposes of this law.

In an attempt to ameliorate the harshness of this law, Congress has allowed for certain exceptions. For instance, the inadmissibility rule does not affect persons under the age of eighteen; asylees with pending good faith asylum applications; beneficiaries qualified to claim family unity protection; certain battered wives or children; and persons who have timely filed their non-frivolous applications for change or extension of status and have not worked illegally in the United States.

Congress has also allowed certain immigrants to obtain waivers from the Attorney General for the above law. Immigrants who are the immediate relatives (i.e. spouses or children) of a United States citizen or a permanent resident and whose admission is necessary to avoid extreme hardship are qualified to receive such waivers.

The new law also does not affect immigrants who are currently qualified to file applications for adjustment of status by paying a fine under § 245(i). Under this provision, even immigrants who are unlawfully present in the United States can file for an adjustment of status by paying a $1,000.00 penalty fee. This particular provision, however, expires on September 30, 1997. After this date, INS will no longer accept such applications but will, nevertheless, continue to adjust the status of immigrants who filed their adjustment applications prior to that date. Immediate relatives of U.S. citizens, persons under seventeen, as well as spouses or unmarried children of temporary or permanent residents are exempted from paying the $1000.00 fine.

Thus, if you are an immigrant in the United States and are uncertain about how this particular amendment affects you, the prospects ahead may not be as bleak as they seem. For example, if you have an immediate relative, either a parent, spouse or a child who is or will become a United States citizen, you might be able to file an application for a change of status. Alternatively, even if you have no petitionable relationship, you may fall under those who are allowed to file an application for a change or extension of status and may file your application before the September 30, 1997 deadline. Alternatively, even if you decide to wait and see whether a petitionable relationship might materialize and fear that you might miss the September 30, 1997 mark, Congress might later decide to extend the law beyond that date.

Although the INA was amended by Congress to “control illegal immigration,” the amendments have the effect of encouraging immigrants who are out of status to stay in the country. Despite the above law, immigrants are unwilling to depart United States because they realize that it would be very difficult, if not impossible, for them to return. Some adopt the “wait and see” attitude: Wait and see if they might later acquire a petitionable relationship, either through employment or family, and may later qualify to file for an adjustment of status application; or wait and see if Congress will extend § 245(i) beyond the September 1, 1997 mark and may even decide to apply it retroactively.