By Robert L. Reeves & Nancy E. Miller

Good news has come from the U.S. Court of Appeals for immigrants who face a permanent bar to admission based on illegal entry after either prior deportation or after accruing one year or more of unlawful presence.

This new relief has been made available through a case called Acosta v. Gonzales which was issued by the 9th Circuit Court of Appeals. The 9th Circuit covers California, Oregon, Washington State, Alaska, Hawaii, Guam, Nevada, Arizona, Idaho, and Montana. Only people whose cases arose in those states are affected by this decision.

Under Acosta, aliens who are subject to the permanent bar because of illegal entry following either unlawful presence or prior deportation may adjust their status (obtaining a green card) if they are the beneficiaries of 245(i) grandfathering. Persons are 245(i) grandfathered if they have either a family-based or employment-based petition pending for them that was filed prior to April 30, 2001. If the petition was filed subsequent to January 14, 1998, the alien must have been physically present in the United States on December 21, 2000. Family-based petition means a petition filed by a United States citizen parent, spouse, adult son or daughter or brother or sister. It also includes petitions filed by a lawful permanent resident parent (for an unmarried son or daughter) or spouse. Employment-based petitions means labor certification applications or immigrant visa petitions. The test for grandfathering is whether the petition was approvable (non frivolous) when filed. For example, if the petition was based on a marriage that has subsequently been terminated through divorce or the visa petition has become invalid due to the subsequent marriage of the LPRs son or daughter, the beneficiary may still be grandfathered. The petition does not need to be current as long as it was filed before the cut-off date. To take advantage of the 245(i) benefit, the applicant must pay a $1,000 penalty when filing his application for adjustment of status and show proof that they are 245(i) grandfathered.

Until the Acosta decision the following classes of aliens were barred from obtaining permanent resident status. An alien who has been ordered removed from the United States who subsequently enters or attempts to enter the U.S. without being legally admitted is permanently barred from admission. An alien who incurred more than one year of unlawful presence and then illegally reentered the country. Unlawful presence begins to accrue when one enters the United States without a visa or when the visa that one has expires. Students with “duration of studies” or “D/S” expiration date do not begin to acquire unlawful presence until an immigration officer or an immigration judge makes a determination that the student has violated their status by ceasing to be a full-time student in the school which the alien was authorized to attend.

Not everyone illegally in the U.S. accrues unlawful presence. Minors do not begin to accrue unlawful presence until they reach the age of 18. Asylees do not accrue unlawful presence during the time they have a bona fide application for asylum pending unless they worked without authorization. Persons who have received family unity protection do not incur unlawful presence during the time that they are under that protection. Battered women and children who were battered or subjected to extreme cruelty by a spouse or parent may also not accrue unlawful presence if there was a substantial connection between the battery or cruelty and the unlawful entry into the U.S.

Not all the time that one is out of status is considered unlawful presence. A person who entered the U.S. lawfully (meaning someone who was admitted with a valid visa or paroled into the U.S.) and who filed a non frivolous application for change or extension of status before the date of expiration of the period of authorized stay and who has not been employed without authorization before or during the pendency of the application does not incur unlawful presence during the time the application is pending.

Until recently, the only exception to the permanent bar to admissibility was a waiver under section 212(a)(9)(C)(ii). However, an alien could not apply for that waiver until he or she had been out of the U.S. for a period of 10 years. Now, however, aliens subject to the permanent bar who are 245(i) grandfathered can apply for their green card without waiting the ten years to apply for a waiver.

If you believe you may be subject to the permanent bar, you should consult an experienced immigration lawyer. You may be able to get your green card under this new case.