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Current Immigration Laws

Cite as "AILA InfoNet Doc. No. 01092159 (posted Sep. 21, 2001)"

Current Immigration Laws

Current U.S. immigration law is based on the Immigration and Nationality Act of 1952 ("INA," codified at 8 U.S.C. §1101 et.seq.), which has been amended many times over the last 40 years. Following are some of the most important and recent amendments to the INA:

Legal Immigration and Family Equity ("LIFE") Act of 2000

At the end of the 106th Congress the LIFE Act was enacted as part of the Omnibus budget deal negotiated between Congress and the Clinton White House. The LIFE Act included five major provisions:

  • Temporary Restoration of Section 245(i): Temporarily restores Section 245(i) through April 30, 2001. (See section below on 245(i) legislation for discussion of Section 245(i).)
  • New temporary visas for spouses and children of legal permanent residents: Creates a new "V" nonimmigrant visa for spouses and children of permanent residents who have been waiting at least three years for their green card. Allows them to enter the U.S. and obtain work authorization while waiting for their green card to be issued.
  • New temporary visa for spouses of U.S. citizens married abroad: Expands the current "K" visa for fiancés and fiancées of U.S. citizens to allow spouses of U.S. citizens who are married abroad, and their minor children to enter the U.S. instead of waiting abroad for their green cards.
  • Relief for certain members of the "late legalization" class action lawsuits: Allows individuals who were wrongly denied the ability to file for amnesty under the 1986 IRCA law (see below) and who were members of three class-action lawsuits filed against the government to file new adjustment applications. Also allows their family members to stay in the U.S. and get work authorization.
  • Provides certain waivers and protections for applicants under the Haitian Refugee and Immigrant Fairness Act and NACARA: Allows the Attorney General to waive certain deportation provisions to allow otherwise-eligible individuals to apply for permanent residence under those laws.

H-1B Legislation -American Competitiveness and Workforce Improvement Act of 1998 ("ACWIA") and the American Competitiveness in the 21st Century Act of 2000 ("AC21")

In 1998, the 105th Congress passed and President Clinton signed into law the American Competitiveness and Workforce Improvement Act ("ACWIA," Title IV, P.L. 105-277) to address the demand for H-1B professionals by increasing the cap from 65,000 (where it had been since 1990) to 115,000. ACWIA also added a requirement for domestic recruitment and a prohibition on laying off U.S. workers to employers that use a high percentage of foreign professionals, and required all employers sponsoring H-1Bs to pay a $500 fee to fund education and training programs for U.S. workers. The 106th Congress passed and President Clinton signed into law the American Competitiveness in the 21st Century Act (P.L. 106-313) in October 2000. AC21 increased the cap on H-1B visas to 195,000 for the next three fiscal years. The law also increased the ability of H-1B professionals to change employers once they are in the United States, increased the fee employers must pay to educate and train U.S. workers in technology occupations to $1000, and made some changes to prevent INS delays from hurting H-1B professionals who are applying for green cards. Finally, the law allows all available employment-based green cards to be issued each year, regardless of the nationality of the applicants.

Section 245 (i) Legislation -State Department Authorization Act of 1994 and Departments of Commerce, Justice and State, the Judiciary and Related Agencies Appropriations Act of 1997

Included in the 1994 State Department Authorization Act was a provision (Section 245(i)) that allowed for adjustment of status to permanent residence for persons who had fallen "out of status" upon payment of a penalty fee. This provision was set to expire in three years. In 1997, Congress decided to cancel the 245(i) program but allowed for "grandfathering" of individuals who had filed a petition or application for LPR status or who had a labor certification on file before January 14, 1998. The 1997 legislation also created a new §245(k) that allows certain employment-based visa applicants to adjust status in the United States as long as they have not been out of status for more than a total of 180 days.

Nicaraguan Adjustment and Central American Relief Act of 1997 (NACARA)

Provided for adjustment of status for all Nicaraguans and Cubans who were present in the United States since December 1, 1995 and provided for limited ability to apply for suspension of deportation for certain Salvadorans and Guatemalans who had applied for asylum before April 1, 1990, and for Eastern Europeans who entered the United States before December 31, 1990 and had applied for asylum before December 31, 1991. The law reduced the availability of employment-based immigrant visas for lesser-skilled workers by half and reduced the diversity visas by 5,000 to accommodate the new immigrants under this act.

Personal Responsibility and Work Opportunity Reconciliation Act of 1996 (Welfare Reform Law)

This law prevented lawful permanent residents from receiving most means-tested public benefits, including welfare, Medicaid, food stamps, supplemental security income (SSI), and others, regardless of their length of residence in the United States or their participation in the Social Security program. Allowed a sponsor's income to be included in calculations of income when determining need, and made the affidavit of support for immigrants legally enforceable. Since passage of this Act, subsequent laws have restored many benefits to legal residents who were in the United States at the time this law was enacted.

1996 Laws - the Illegal Immigration Reform and Immigrant Responsibility Act of 1996 (IIRAIRA) and the Anti-Terrorism and Effective Death Penalty Act of 1996 (AEDPA)

Together these laws:

  • Significantly expanded the categories of offenses (including non-violent crimes) for which an immigrant could be deported. The immigration definition of "aggravated felony" now includes more than 30 crimes, including such offenses as shoplifting and check kiting.
  • Allowed criminal deportation provisions to be applied retroactively, causing long-term legal residents to be deported for minor crimes committed decades ago.
  • Eliminated certain waivers of deportation and curtailed the ability of long-term residents to show community ties and extreme hardship to obtain relief from deportation.
  • Established a summary removal procedure, without review, for persons arriving to the United States without documents or with fraudulent documents, or who an immigration inspector believes is attempting to enter the United States by misrepresentation. This provision allows for limited screening of persons who claim a credible fear of persecution if returned to their country.
  • Created special deportation provisions and courts to hear "secret evidence" against foreign nationals deemed to be terrorists.
  • Eliminated judicial review of most deportations for persons convicted of criminal offenses.
  • Required creation of an automated entry-exit control system at all land, sea and air ports-of-entry to track all non-U.S. citizens.
  • Significantly revised the administrative judicial process for removal of aliens from the United States.
  • Created new and far-reaching grounds of inadmissibility, including a 3 year or 10 year bar to readmission for persons "unlawfully present" in the United States for lengthy periods of time, for persons who have not received vaccinations against vaccine-preventable diseases, for health care workers who do not have appropriate certifications, for persons who falsely claim U.S. citizenship or vote in an election, for persons who renounce their U.S. citizenship for tax reasons, for foreign students who attend public school without permission, and others.

Immigration Act of 1990 (IMMACT 90)

Representing the first major overhaul of the legal immigration system since 1952, IMMACT 90 substantially changed the preference system for immigrants by establishing separate categories, with separate annual caps, for employment-based immigrants and family-sponsored immigrants. It removed from annual quotas immigrants who were immediate relatives (spouses, minor children, and parents) of U.S. citizens, and established a diversity immigration program by lottery for applicants from underrepresented countries.

IMMACT 90 also made significant changes to the temporary (nonimmigrant) visa categories, including the H-1B category for temporary workers in specialty occupations, which, for the first time received an annual cap of 65,000, and required employers to file a labor attestation with the Department of Labor regarding wages and working conditions. An annual cap was also placed on the H-2B category for temporary or seasonal workers. Other changes included the creation of new categories (O and P) for foreign nationals of extraordinary ability in their field, athletes and entertainers, a new Q visa for intercultural exchange, and an R visa for religious workers, among others.

The law established a relief from removal called Temporary Protected Status (TPS) that enables the Attorney General to designate nationals of certain countries from areas suffering from political or environmental upheavals to remain in the United States for temporary periods. The law refined and broadened the provisions concerning deportable and excludable criminal offenses. IMMACT 90 also reorganized and removed outdated grounds of exclusion and deportation.

Because of the breadth of IMMACT 90, the next year two technical amendments laws were enacted to solve "holes" in IMMACT 90, the Armed Forces Immigration Adjustment Act of 1991, which created a special immigrant status for individuals who had served honorably in the armed forces and allowed grandfathering for those who had filed petitions under the pre IMMACT 90 scheme. The Miscellaneous and Technical Immigration And Naturalization Amendments of 1991 (MTINA), reinstituted court ceremonies for naturalization which had been removed in IMMACT 90, and made technical changes to the H-1B, O and P categories.

Immigration Nursing Relief Act of 1989 (INRA)

This law established a new temporary visa category for Registered Nurses (H-1A) for a period of five years, which included strict requirements for employers to demonstrate efforts to recruit and retain U.S. workers, including a labor attestation for H-1A nurses. The law also allowed for immediate adjustment of status to permanent residence, without regard to quotas, for nurses who had been employed for three years. This law sunsetted in 1994.

The Immigration Marriage Fraud Amendments of 1986 (IMFA)

Although less-well known than IRCA, this law aimed to prevent illegal marriages for "green cards." Among other provisions, it established a two-year period of "conditional permanent residence" for foreign nationals who married U.S. citizens or Lawful Permanent Residents ("LPRs"), at the end of which time the couple must prove to the INS that the marriage is legitimate, and was not entered into for the sole purpose of getting a green card.

The Immigration Reform and Control Act of 1986 (IRCA)

IRCA introduced the concept of penalties against employers for knowingly hiring undocumented immigrants. IRCA requires all employers to verify the employment eligibility of all new hires, but prohibited discrimination in employment based on citizenship status or nationality. IRCA also established several amnesty programs for various groups of undocumented immigrants in the country, in an effort to "clear the slate." These included a general amnesty for immigrants who had arrived before January 1, 1982, an amnesty for Cuban and Haitian refugees, an amnesty for immigrants who had been present in the U.S. for long periods of time prior to 1972 (called "registry"), and two programs for agricultural workers.

The Refugee Act of 1980

This Act removed refugees from the overall immigration quotas (set in 1976 at 290,000 visas), and gave them a separate cap of 50,000 or more visas each year (to be set by the President).



39BK1001 3/1/2001

 
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