Recently the handling of civil immigration detainers by local law departments has been heavily scrutinized.
AILA Doc No. 99051140 | Dated May 13, 1999
Questions and Answers
May 11, 1999
Haitian Refugee Immigration Fairness ActThe Haitian Refugee Immigration Fairness Act (HRIFA) was signed into law on October 21,1998. The interim rule to be published in the May 12, 1999, Federal Register establishes the procedures that eligible Haitians will use to file for adjustment to lawful permanent resident (LPR) status pursuant to section 902 of HRIFA. The interim rule takes effect on June 11, 2000.
Q: Which Haitians are eligible for adjustment to lawful permanent residence (LPR)?
A. To be eligible for these benefits, Haitians must belong to one of the five classes specified in section 902 (b) of HRIFA; must have been physically present in the United States on December 31, 1995; must have remained continuously physically present in the United States since December 31, 1995; and must not be inadmissible to the United States under any grounds of inadmissibility for which HRIFA does not specifically provide an exception. Certain Haitian dependents are also eligible.
The classes described in section 902(b) include any Haitian national who:
– Arrived without parents and has remained in the United States without parents; or
– Became orphaned after arriving in the United States; or
– Was abandoned by their parents or guardians prior to April 1, 1998, and has remained abandoned.
"Continuously physically present" is defined as no more than a total of 180 days outside the United States between December 31, 1995, and the date the HRIFA adjustment application is granted unless the applicant received an Advanced Authorization for Parole or the absence occurred under certain circumstances.
Principal HRIFA beneficiaries must properly file their applications on or before March 31, 2000.
There is no application deadline for dependants.
Q: Is a dependent (spouse, minor child, unmarried son or daughter 21 or older) of a Haitian eligible for adjustment?
A. To receive HRIFA benefits as a dependent of a principal HRIFA beneficiary, an alien must be:
In addition, unmarried sons or daughters, (i.e., over 21 years old) must prove that they have been continuously physically present in the United States since December 31, 1995.
There is no application deadline for dependents.
Q: When may an eligible Haitian file for adjustment?
A. The application period for HRIFA adjustment of status benefits begins June 11, 1999, and ends March 31, 2000, for principal applicants. There is no deadline for dependents.
Q: How do they apply?
A. Applicants for HRIFA benefits must determine which one of the following categories applies to them. These categories define where applicants must submit their applications.
• Never in Proceedings: Applicants who have never been in exclusion, deportation or removal proceedings must submit their application and supporting documentation to INS.
• Administratively Closed Cases: Applicants whose cases were administratively closed by the Immigration Court or the Board must submit their application and supporting documentation to INS.
• Final Orders: Applicants who are already subject to a final order of exclusion, deportation or removal, and who have never filed an application for adjustment of status pursuant to HRIFA with the Immigration Court, must file their application and supporting documentation to INS. Applicants with final orders, who file a motion to reopen after May 12, must also file with INS.
• Immigration Court Proceedings: Applicants in exclusion, deportation or removal proceedings, or applicants who have a motion to reopen or reconsider pending prior to May 12, 1999, before the Immigration Court should submit their application and supporting documentation to the Immigration Court with jurisdiction over their proceeding.
• Board of Immigration Appeals proceedings: Applicants in exclusion, deportation or removal proceedings, or applicants who have a motion to reopen or reconsider pending before May 12, 1999, before the Board of Immigration Appeals shall have their cases remanded to the Immigration Court. Once remanded, Immigration Courts will set a hearing date. Applications and supporting documentation should be submitted to the Immigration Court with jurisdiction over the remand. If the applicant’s case has not been remanded by the Board, the application and supporting documentation should be submitted to the Board as well as a request to remand.
– To file with INS
Applicants must submit their application (Form I-485, Application to Register Permanent Residence or Adjust Status), supporting documents, and fee ($220 or $160 for those under 14 ) by mail to USINS Nebraska Service Center, P.O. Box 87245, Lincoln, NE 68501-7245. If the applicant is 14 years of age or older, a $25 fee to cover the cost of fingerprinting must also be submitted.
– To file with the Immigration Court or Board
Applicants must submit their application, suing documentation and the application fee receipt to the Immigration Court with jurisdiction over their case. If the Board has not remanded the case to the Immigration Court, applicants should submit the documents to the Board. Filing and fingerprinting fees should be submitted to the INS.
Applicants who are unable to pay the filing fee may request a fee waiver from the INS Service Center Director. Information on how to apply for a fee waiver can be found on the Internet at www.uscis.gov or by contacting local INS offices.
Q. May someone who is outside the United States apply for adjustment under HRIFA?
A. No. Section 902 only provides benefits for those who are present in the United States at the time of filing. However, the regulation contains a special provision that allows an otherwise eligible alien who is outside the United States to submit a request for parole authorization. The request must be accompanied by photocopies of the documents the alien intends to file in support of the claim for eligibility for adjustment of status under HRIFA if the parole authorization is granted. Parole may be authorized, as a matter of discretion, if upon review of the application for parole and related documents INS determines that the application for adjustment of status is likely to be approved once it has been properly filed. The alien would be allowed to file the application after being paroled into the country. Accordingly, the alien must remain outside the United States until the request for parole authorization is approved. Any attempt to enter the United States without the parole authorization could result in the alien’s being found inadmissible to, and removed from, the United States.
Q: Can a person eligible under HRIFA who has been ordered deported but not yet deported, still apply for adjustment to LPR status?
A: Yes, if they are otherwise eligible. An alien who is the subject of a final order, and has never filed an application for adjustment of status under HRIFA with the Immigration Court, must file such application with INS. However, if such alien has a motion to reopen or a motion to reconsider pending at the Immigration Court or the Board on or before May 12, 199, then the application for adjustment must be filed with the proper Court or the Board as appropriate. The mere filing of an application for adjustment of status under section 902 of HRIFA with INS or the referral of a denied application to an immigration judge does not stay the execution of that final order. In order to request that INS stay the execution of the final order, the alien must file a Form I-246, Application for Stay of Removal. If the application is referred to the immigration judge, and INS does not grant a stay of execution of the final order, the alien must request that the immigration judge or Board specifically grant a stay of execution of the final order.
Q: What about people who have already been deported?
A: An alien who has been deported from the United States cannot apply for adjustment under HRIFA because one must be present in the United States to receive such a benefit. An alien who is outside the United States may, under certain circumstances, request parole authorization to return to the United States in order to apply for adjustment under HRIFA. Furthermore, aliens who have previously been deported are ineligible for adjustment of status unless and until INS has approved their application for permission to reapply for admission (Form I-212) into the United States after exclusion, deportation or removal.
Q: Do all grounds of inadmissibility apply to applicants for adjustment under HRIFA?
A: Not all of them. The law states that the grounds of inadmissibility dealing with public charge, lack of labor certification, illegal entry, lack of a required visa, and certain periods of unlawful presence do not apply to applicants for adjustment under HRIFA. An applicant who is inadmissible under any other grounds may not be granted adjustment, unless an individual waiver is available and granted.
Q: Is there a general waiver for those Haitians who have HIV or AIDS?
A: No, there is no general HIV/AIDS waiver. Individuals must apply for a waiver under Section 212 (g) of the INA. To be eligible an alien must have a qualifying family relationship and also demonstrate that:
Q. Can a person eligible for HRIFA and convicted of a crime in the United States still apply for LPR status?
A: HRIFA does not waive any criminal grounds of inadmissibility for Haitians seeking adjustment of status. However, such aliens may be eligible for an individual waiver of such inadmissibility under certain circumstances.
Q: Are applicants for adjustment under HRIFA eligible for work authorization?
A: Applicants wishing to obtain or renew employment authorization should file a Form I-765, Application for Employment Authorization, with INS.
INS is not required to authorize employment to a HRIFA applicant until their HRIFA adjustment application has been pending for more than 180 days. However, INS will authorize employment for those applicants whose application has been pending less than 180 days where INS records contain evidence that supports the applicants claim of HRIFA eligibility (e.g., the applicant is a Haitian national who had applied for asylum, or was paroled into the United States prior to December 31,1995.)
Q: What constitutes a "break" in continuous presence for Haitians?
A. Absences from the United States totaling more than 180 days during the period that begins on December 31, 1995, and ends on the date the HRIFA adjustment application is granted constitutes a "break" in continuous presence for Haitians.
Q: Are Haitians eligible for HRIFA allowed to travel outside the United States?
A:Applicants planning to leave the United States before a decision is made on their application must provide INS with advance notice of their travel plans in order to obtain permission to re-enter the country and avoid the possibility of having their application terminated or denied. Applicants who plan to leave must file a Form I-131, Application for Travel Document, to obtain from INS a Form I-512, Authorization for Parole of an Alien into the United States, from INS. Once the interim rule takes effect on May 12, 1999, an I-512 will be issued only to HRIFA eligible aliens who have filed for adjustment of status.
Haitian nationals who have received a final order of exclusion, deportation or removal should NOT leave the United States if they want to apply for benefits under HRIFA. Aliens under removal orders who leave the country are considered to be self-deported and cannot apply for adjustment, even if they had obtained advance parole before departure. Self deported aliens who want to apply for adjustment of status must first apply for and receive permission to reapply for admission to the United States (INS Form I-212).
Q: What happens if INS denies an application?
A. Applicants found ineligible for adjustment of status under HRIFA will be advised of INS’ determination and of their right to seek, and the procedures for seeking, consideration of the application by an immigration judge. Such procedures will follow one of three routes:
Q: What happens if an Immigration Court denies an application?
A: If the Immigration Court denies the HRIFA adjustment application of an alien whose case was remanded by the Board, the Immigration Court shall certify the decision to the Board for review. If the Immigration Court denies the application of an alien whose case was referred by INS for a HRIFA-adjustment-only inquiry, the alien shall have the right to appeal the decision to the Board, subject to the requirements governing appeals from immigration judges to the Board, including the requirements of a filing a Notice of Appeal (Form EOIR-26) and appeal filing fee. An alien may not appeal a final administrative decision denying HRIFA adjustment to a Federal Court.
- INS -Last Modified 5/12/99
Cite as AILA Doc. No. 99051140.