The September 27th Deadline: Who Stays And Who Goes

September 27, 1997 is an extremely important date to many immigrants residing in the United States. On that date, Section 212(a)(9)(B) of the Immigration and Nationality Act (as amended by IIRAIIRA) will prevent certain individuals from obtaining a green card. Any alien who has resided in the United States for a longer time than permitted exceeding 180 days after April 1, 1997 who subsequently leaves the country, is barred from re-entering for three years. Furthermore, if the alien has resided unlawfully in the United States for a period of at least one year and who subsequently leaves is barred from re-entering for the next ten years.

Although the interpretation of this law has not yet been finalized, one fact is certain: the new law will first affect certain persons on September 27, 1997 (i.e., 180 days after April 1, 1997). Before packing your bags and driving to the Airport on September 26, 1997, you should first ask the following questions: Are you affected by this new law? If so, should you stay or go?

First of all, everyone is not subject to the statutory bars under IIRAIIRA. Certain individuals are excepted, such as

(1) individuals under 18 (the 180 days do not begin to run until the minor has reached his/her 18th birthday);

(2) asylum applicants who have filed non-frivolous asylum applications;

(3) family unity beneficiaries (i.e. parents became permanent residents through amnesty); and

(4) battered spouses and children.

These individuals are not affected by Section 212(a)(9)(B) of the INA and therefore, have no reason to leave the country. In addition, those aliens who have already been in the United States for or approaching ten years and whose family members (e.g. parents or children) who are United States citizens or permanent residents may be eligible for cancellation of removal and therefore, also might not want to leave. This category may apply for a green card through cancellation of removal (formerly suspension of deportation). The bar does not apply to this group of aliens.

As for all aliens who are out of status and who do not fit into any of the above categories, and have no other apparent way to obtain a green card, it may be much wiser for them to stay in the United States. By staying, they have nothing to lose and so much more to gain. They can simply wait until they are certain about their ability to re-enter the U.S. before they decide to leave. Or, if their parents or spouses are permanent legal residents, the INA provides for a general waiver if it can be shown that the Section 212(a)(9)(B) bar will result in extreme hardship to the United States citizen spouse or parent. It is important to note, however, that the INS has not yet established regulations which define what constitutes “extreme hardship.” Therefore, those who will rely on obtaining a green card through this waiver may or may not qualify under the definition of “extreme hardship.” It is also important to note that having children who are United States citizens is insufficient to qualify for the waiver.

Aliens awaiting labor certification approval should consider the following issues. In order to ensure success in the labor certification process, the employee and the employer must cooperate together. Moreover, the alien employee must continue working for the employer to keep the employer interested, otherwise, the employer may find another worker to replace the alien employee if he or she decides to leave the country.

Moreover, leaving the country may delay, or even totally close one’s opportunity to obtain a green card. If after leaving the United States,the petitioner dies, or the labor certification application is denied, or the employer goes out of business, or the law changes and abolishes the bar, most aliens will find it extremely difficult, if not impossible, to return to the United States. Thus, it appears that most aliens will face more risks in leaving rather than staying in the United States.

In the case of out of status aliens without labor certification or family-based petitions and all others, there is always the possibility that the law may change, a new amnesty law might pass, or a family-based or an employment-based petition may be filed sometime in the future. Additionally, those who have approved family-based petitions with a priority date that will be current within one year should consider leaving. However, just because the INS visa bulletin shows a priority date might be current in one year does not mean it will. Most categories only progress a few months in a year. If it is one year away in the visa bulletin, it may take several years before the priority date actually becomes current.

Presently, the Immigration Act Section 245(i) provides a waiver for aliens who overstay or are out of status for a penalty fee of $1,000. Unfortunately, section 245(i) was enacted only as a temporary measure and is due to expire on September 30, 1997. Congress is currently considering the possibility of extending that waiver permanently. At present, only the Senate has approved this measure and it might not be until October before a final decision is rendered on this law. In my opinion, there is a 60 to 70 percent chance that Congress will pass this law.

Parents who are being petitioned by adult sons or daughters who are not yet naturalized should, however, consider departing the United States before September 27, 1997. Since there is no waiver for aliens with United States citizen children, the three and ten year bars to adjustment would apply and may even prevent the alien parents of a United States citizen from being able to adjust his or her status or re-enter the country. Therefore, if your son or daughter is presently in the naturalization process, and will be petitioning your after being naturalized, you should consider departing the country before September 27 date.

One thing is certain: if you are eligible to apply for adjustment of status on or before September 27, 1997, you will not be subject to the three and ten-year bar. Therefore, it is critical to verify your priority date eligibility or otherwise examine other remedies available to you prior to the September 27, 1997 date.

In my opinion, the vast majority of immigrants should not leave the United States because most of them will be giving up important rights and their dreams of creating a better future for themselves and their families. There are a few exceptions as pointed out in this article. For those who might be concerned about their status, I strongly urge you to seek the legal advice of a competent attorney.

THIS ADVISORY IS GENERALIZED AND IS NOT A SUBSTITUTE FOR INDIVIDUAL LEGAL ANALYSIS. It should not be regarded as a legal advice. THIS IS NOT OUR BEST INFORMATION AT THIS TIME. The statute and other materials must be consulted for further understanding of these topics. Moreover, the INS has not promulgated implementing regulations. Many questions remain.