Recently the handling of civil immigration detainers by local law departments has been heavily scrutinized.
AILA Doc No. 94090158 | Dated August 26, 1994
Adjustment of Status Provision
ADJUSTMENT OF STAION SIGNED INTO LAW
Prepared by Howard W. Gordon on August 31, 1994
Summary of the Legislation
The adjustment of status provision, attached to the Commerce, State, and Justice Appropriations Conference Report, passed both Houses of Congress as Section 506 of H.R. 4603. The President signed it on August 26, 1994.
Section 506. The provision allows previously ineligible persons to adjust their status in the United States by paying a sum equivalent to five times the adjustment application fee, plus the fee. Family unity beneficiaries and children under seventeen years of age are exempt from paying the additional sum.
90-Day Bar. The provision contains a bar to overseas visa processing for individuals who have been physically present in the United States, unless and until the individual has remained outside the United States for 90 days. The 90-day bar will not apply to those who were in legal status at the time of their departure or to family unity beneficiaries.
Effective Date. The law takes effect on October 1, 1994 and sunsets on October 1, 1997. An interim rule is expected by October 1.
Adjustment of Status Provision/Full Text
Sec. 506. (a) Section 212 of the Immigration and Nationality Act as amended (U.S.C. 1182), is amended by adding at the end thereof the following new subsection (o): (o) An alien who has been physically present in the United States shall not be eligible to receive an immigrant visa within ninety days following departure therefrom unless; (1) the alien was maintaining a lawful nonimmigrant status as the time of such departure, or, (2) The alien is the spouse or unmarried child of an individual who obtained temporary or permanent resident status under section 210 of 245A of the Immigration and Nationality Act or section 202 of the Immigration Reform and Control Act of 1986 at any date, who; (A) as of May 5, 1988, was the unmarried child or spouse of the individual who obtained temporary or permanent resident status under section 210 or 245A of the Immigration and Nationality Act or section 202 of the Immigration Reform and Control Act of 1986; (B) entered the United States on May 5, 1988, and is not a lawful permanent resident; and, (C) applied for benefits under section 301(a) of the Immigration Act of 1990.
(b) Section 245 of the Immigration and Nationality Act, as amended (U.S.C. 1255), is amended by adding at the end thereof the following new subsection: (i)(1) Notwithstanding the provisions of subsections (a) and (c) of this section, an alien physically present in the United States who; (A) entered the United States without inspection; or (B) is within one of the classes enumerated in subsection (c) of this section may apply to the Attorney General for the adjustment of his or her status to that of an alien lawfully admitted for permanent residence. The Attorney General may accept such application only if the alien remits with such application a sum equalling five times the fee required for the processing of applications under this section as of the date of receipt of the application, but such sum shall not be required from a child under the age of seventeen, or an alien who is the spouse or unmarried child of an individual who obtained temporary or permanent status under section 210 or 245A of the Immigration and Nationality Act or section 202 of the Immigration Reform and Control Act of 1986 at any date, who; (i) as of May 5, 1988, was the unmarried child or spouse of the individual who obtained temporary or permanent resident status under section 210 or 245A of the Immigration and Nationality Act or section 202 of the Immigration Reform and Control Act of 1986; (ii) entered the United States before May 5, 1988, resided in the United States on May 5, 1988, and is not a lawful permanent resident; and, (iii) applied for benefits under section 301(a) of the Immigration Act of 1990. The sum specified herein shall be in addition to the fee normally required for the processing of an application under this section. (2) Upon receipt of such an application and the sum hereby required, the Attorney General may adjust the status of the alien to that of an alien lawfully admitted for permanent residence if; (A) the alien is eligible to receive an immigrant visa and is admissible to the United States for permanent residence; and, (B) an immigrant visa is immediately available to the alien at the time the application is filed. (3) Sums remitted to the Attorney General pursuant to paragraphs (1) and (2) of this subsection shall be disposed of by the Attorney General as provided in sections 286(m), (n), and (o) of this title.
(c) The provisions of these amendments to the Immigration and Nationality Act shall take effect on October 1, 1994 and shall cease to have effect on October 1, 1997.
(d) The Immigration and Naturalization Service shall conduct full fingerprint identification checks through the Federal Bureau of Investigation for all individuals over sixteen years of age adjusting immigration status in the United States pursuant to this section.
State Department Cable
On Monday August 29, the State Department issued a cable advising posts of the new law, and handling pending and future cases. Posts are asked to take immediate steps to notify immigrant visa applicants who may be affected.
Packet 4 Notification/Informational Letters. For individuals being scheduled for appointments in October and thereafter, posts will be sending a notice about the new law with packet 4, and the notice "will be the first document that the applicant will see upon opening the envelope." Further, "if the post is aware that an applicant is in the United States, post should not schedule an appointment nor send packet 4 but only an information letter in lieu of packet 4." The notice in both instances (i.e., both the notice contained in the packet 4 and the informational letter) will alert applicants about the legislation, particularly with regard to the provision about remaining outside the United States for 90 days. The notice will also state that if an applicant is in the United States and plans to apply for adjustment of status, INS should be contacted directly, and the post should also be so informed so that the file may be returned to INS for future processing. Individuals receiving the informa-tional letter who wish to continue with consular processing should so advise post.
Cases in Progress/No Scheduled Appointments. Individuals whose cases are already in process, but not yet ready for appointments (mainly cases where applicants are documentarily qualified but are still waiting for visa number allocation), will also receive notification from posts about the new law, and will be given the option of adjusting status if in the United States: "If you are in the United States and want to apply for adjustment of status with INS, contact INS directly and inform us so we can return your file to INS for processing."
Refusal Overcomes. The cable also directs posts to make every effort to get "...refusal overcome cases for these applicants in and issued before October 1....It is possible that as of October 1, out-of-status individuals with appointments before that date whose cases were not completed will have to remain outside of the United States for 90 days before visa issuance."
The cable clearly states: "We do not want IV applicants who are out-of-status in the U.S. to arrive at post expecting to receive their visa, only to learn that they must remain outside of the U.S. for 90 days before processing can be completed." Future packet 3s will also include notification about the new law.
Cite as AILA Doc. No. 94090158.