Cite as "AILA InfoNet Doc. No. 01010507 (posted Jan. 7, 2001)"
Under the LIFE Act, the “grandfather” clause of Section 245(i) is extended from January 14, 1998 until April 30, 2001. As a result, any beneficiary of an immigrant visa petition or labor certification application filed before April 30, 2001 will be able to apply for adjustment of status under Section 245(i) if necessary. However, for any
applications filed after January 14, 1998 (but before April 30, 2001) the applicant must prove they were physically present in the United States on the date of the enactment of the LIFE Act (December 21, 2000) in order to be
eligible for Section 245(i) adjustment of status.
CREATES A NEW TEMPORARY VISA FOR SPOUSES AND MINOR CHILDREN OF LEGAL PERMANENT RESIDENTS AWAITING AN IMMIGRANT VISA
In order to address the severe backlogs on the availability of visas for families, the LIFE Act provides a remedy for the spouses and minor children of legal
permanent residents. Under current law, because these individuals are intending immigrants, there is no way for them to legally come to the United States, even
for a short visit. By creating a new “V” visa, the law grants some family members a legal status and work authorization in the United States.
“V” Visa: Allows the spouses and minor children of lawful permanent
residents (the Family 2A category only) who have been waiting more than 3 years
for a green card, to enter the United States and be granted work authorization.
In order to qualify the spouse or child must meet the following criteria:
green card petition was filed on or before enactment of the law. The sponsoring
permanent resident must already have filed a green card petition for the spouse
or minor child with the INS as of the date that the LIFE Act became law
(December 21, 2000).
- Must have been waiting at least 3 years. The petition must either have been pending with the INS for three years or more or, if the petition has been approved, the spouse or minor child must have been waiting at least three years for their “turn” in the green card line.
of Grounds of Inadmissibility and Adjustment of Status. The law provides that periods in the United States in unauthorized status will not prevent someone from obtaining a V visa (§212(a)(9)(B) shall not apply). The law also would allow individuals already in the United States to apply to “adjust status” to the new V category, even if they are in the United States unlawfully (§212(a)(6)(A), (7), and (9)(B) shall not apply). With the reinstatement of Section 245(i), V visa holders will be eligible to adjust their status to legal permanent resident under that section.
A NEW TEMPORARY STATUS FOR SPOUSES OF U.S. CITIZENS AWAITING AN IMMIGRANT VISA
order to address the severe backlogs on the processing of petitions for family
members, the LIFE Act creates a remedy for the spouses of United States citizens
who are outside of the United States and waiting for the approval of an
immigrant petition. Any minor
children who are seeking to accompany the spouse are also provided protection. By expanding the eligibility for a K visa, the new law will
allow the spouse of a U.S. citizen to enter the United States and obtain work
authorization while waiting for the petition to be approved.
of Fiancée Temporary Visa Category. The
bill expands the use of the “K” visa, which currently allows fiancées of
U.S. citizens to enter the United States for the purposes of getting married, to
be used by spouses of U.S. citizens who are already married and are waiting
outside of the United States for the approval of their immigrant visa petitions.
Any minor children who are accompanying the spouse can be included in the
petition. In order to qualify the spouse and minor children must meet the
immigrant visa petition must be previously filed. The law requires that the U.S.
citizen file an immigrant petition before a visa can be issued to the spouse
abroad. The K visa will allow the spouse abroad to enter the U.S. and await the
approval of the petition.
of the K visa must be outside of the United States. The law only authorizes the
visa to be issued by a consular officer outside of the United States. There is
no provision to “adjust status” for someone already in the United States in
an unlawful status.
K visa petition must be filed in the United States. The petition for the K visa
must be filed in the United States by the U.S. citizen spouse.
marriage occurs outside of the U.S., the K visa must be issued by the consulate
where the marriage occurred. Where the marriage to the U.S. citizen occurred
outside of the United States, the statute says that, at the time of admission,
the alien must have “a valid non-immigrant visa issued by a consular officer
in the foreign state in which the marriage was concluded.”
to current and future applicants.
The bill provides that this new K status is available both to individuals with
currently pending green card petitions and future applicants.
law provides that K visa holders are permitted to work in the United States.
This provision would apply to these new K nonimmigrants as well.
FOR THE ADJUSTMENT OF STATUS OF CERTAIN LATE LEGALIZATION CLASS MEMBERS
Is Eligible for Relief:
LIFE Act makes some modifications to the provisions of the 1986 amnesty (Section
245A of the INA) and provides an opportunity to apply for this relief only to
those people who were part of certain class action lawsuits against the INS for
their improper handling of the 1986 amnesty program.
To qualify a person must prove that he or she:
a written claim, before October 1, 2000, for class membership in CSS
v. Meese, LULAC v. Reno,
or INS v. Zambrano (three of the
various class action lawsuits filed against the INS for their improper handling
of the 1986 amnesty program).
the United States before January 1, 1982 and resided continuously in the United
States in an unlawful status through May 4, 1988.
continuously physically present in the United Sates beginning on November 6,
1986 and ending on May 4, 1988 (brief, casual and innocent absences will not
interrupt a finding of continuous physical presence).
an application for adjustment of status with the Attorney General within one
year of the date on which the Attorney General issues final regulations to
implement the new law. The Attorney General is required to issue those regulations
within 120 days after enactment.
not been convicted of any felony or three or more misdemeanors, has not assisted
in the persecution of any person (on account of race, religion, nationality,
political opinion or membership in a particular social group), and is registered
or registering under the Military Selective Service Act (if required to do so
under that Act).
not inadmissible to the United States as an immigrant.
The Attorney General may (for humanitarian purposes, to assure family
unity, or when it is in the public interest) waive any of the grounds of
inadmissibility except those relating to criminals, drug offenses, security
grounds, and public charge grounds. In addition, the Attorney General may grant
a waiver of the grounds of inadmissibility related to aliens seeking admission
after previous removal and aliens present after previous immigration violations.
able to pass the naturalization exam (relating to an understanding of basic
civics and the ability speak, read, and write ordinary English), or show that
they are satisfactorily pursuing a course of study (recognized by the Attorney
General) to achieve such an understanding of English and civics.
Granted Under the Law:
applicants will apply directly for permanent residence, rather than for
temporary resident status.
Attorney General is required to establish a process under which an alien who has
become eligible to apply for adjustment of status as a result of the enactment
of this law and who is not physically present in the United States may apply for
such adjustment from outside of the country.
who submit a prima facie application under this law are entitled to a stay of
deportation, work authorization, and permission to travel while their
application is pending.
limitation on judicial review under IIRAIRA (Section 377) will not apply to
applicants under these modifications and they will be entitled to the same
review allowed by the 1986 laws.
legalized persons will not be disqualified from receiving certain public welfare
assistance. (Under the original Section 245A applicants were disqualified from
certain assistance for 5 years after their application was filed).
However, they may still be subject to restrictions bases on the 1996
Welfare Reform Law.
confidentiality provisions of Section 245A (that generally prevent the
information submitted on the application from being used for any purposes except
criminal prosecution) will apply, except that information submitted by an
applicant under the new law may be used in proceedings to rescind an adjustment
PROTECTION FROM DEPORTATION AND WORK AUTHORIZATION TO THE SPOUSES AND CHILDREN
OF LATE LEGALIZATION APPLICANTS
with laws passed in 1990 to protect the family of legalization applicants who
were already in the United States, the LIFE Act prevents the deportation of the
spouses and minor children of a person who is applying for late legalization
under the new law. Also consistent with prior laws, these family members are
eligible for work authorization
Is Eligible for Relief: To be eligible for benefits a person must prove
that he or she is:
spouse or unmarried child of a person who is eligible for adjustment of status
as a result of the late legalization provisions of the LIFE Act.
the United States before December 1, 1988 and resided in the United States on
not been convicted of a felony or three or more misdemeanors in the United
States, has not assisted in the persecution of any person (on account of race,
religion, nationality, political opinion or membership in a particular social
group), or is otherwise not a danger to the community of the United States.
Granted Under the Law:
people will be protected from deportation for violations of status in the United
States but will continue to be deportable for other grounds of deportation,
including criminal activity.
people will be entitled to work authorization in the United States
the applicant for benefits under the late legalization provisions of the LIFE
Act is applying from outside of the United States, the Attorney General is
required to establish a process by which eligible spouses and children may be
paroled into the United States in order to obtain the benefits under the new
CERTAIN WAIVERS AND PROTECTIONS AGAINST DEPORTATION FOR APPLICANTS UNDER NACARA
of certain grounds of inadmissibility: In applications for adjustment of status
under NACARA and HRIFA, the Attorney General may waive certain grounds of
inadmissibility relating to re-entry after a previous order of deportation or
removal (§212(a)(9)(A) and (C)).
from reinstatement of prior orders of deportation or removal: In applications
for adjustment of status, for suspension of deportation, or for cancellation of
removal as provided by NACARA or HRIFA, the Attorney General is prohibited from
reinstating previous orders of removal or deportation in order to prevent those
applications from being filed (§241(a)(5) shall not apply).
of Motions to Reopen: NACARA and HRIFA applicants who become eligible to apply
for adjustment of status, suspension of deportation, or cancellation of removal
as a result of the changes contained in the LIFE Act will be able to file one
Motion to Reopen any exclusion, deportation, or removal proceedings in order to
apply for an adjustment of status under the Act.
This right to file a Motion to Reopen exists notwithstanding any time and
numerical limitations otherwise imposed under the Immigration and Nationality