New Law Could Mean Trouble for Out of Status Aliens Adjusting Their Status

(The second in a series of Articles on the Illegal Immigration Reform and Immigrant Responsibility Act of 1996)

Many immigrants are “out of status” in the United States, but have an approved visa petition filed by a relative and are merely waiting for a visa to become available. Under the old law, this was not a problem. Although work authorization was difficult to get, there was very little risk of getting deported and getting a green card was fairly simple once a visa became available.

When President Clinton signed the Illegal Immigration reform and Immigrant Responsibility Act of 1996 on September 30, the rules changed. As of April 1, 1997 ( the day the new law goes into effect) it will be much more difficult for TNT’s to adjust their status.

First, aliens unlawfully present in the United States for more than 180 days after April 1, 1997 will be prevented from adjusting their status until they have remained outside of the United States for at least three years. If the alien remains unlawfully present in the U.S. for more than a year, they must leave the United States for ten years before they will be eligible to immigrate.

Although a waiver exists for this 3/10 year bar, the alien must prove that his or her deportation would result in extreme hardship to a U.S. citizen or lawful permanent resident spouse, parent or child in order to obtain the waiver. This may be a very difficult standard to meet. However, this law is in conflict with section 245 (i) which provides for adjustment of status for out of status aliens who pay a penalty fee. How this conflict will be resolved cannot be predicted at this time. Anyway, we will know in the next few months whether waivers will be difficult or not.

Second, the petitioning relative must promise to support the alien and show that he or she can support the alien at least 25% above the poverty level. Since the petitioning relative is often a retired parent on a modest pension or social security, this could be very difficult for some families. Although the beneficiary’s income will often be much higher than the Petitioner’s, the beneficiary’s income cannot be counted. Since the new law doesn’t go into effect until April 1st, anyone who is eligible to adjust status should file an application right away. Under the new law, you are not “unlawfully present” if you have filed an application and the application is still pending. If you don’t know whether or not you are eligible, you should consult a qualified immigration lawyer.