INS Issues 245(i) Adjustment of Status Interim Rule
59 Fed. Reg. 51091 (October 7, 1994). The Immigration and Naturalization Service (INS) has issued an interim rule with request for comments on the new adjustment of status law.
Summary. Many individuals have been precluded from adjusting status in the United States by sections 245(a) and 245(c) of the Immigration and Nationality Act (the Act). Section 245(a) prohibits adjustment for individuals who enter without inspection; section 245(c) prohibits adjustment for individuals who fail to maintain lawful nonimmigrant status, work without proper authorization, or entered in transit without visa status, under a visa waiver program, or as crewmen.
The new law (section 245(i) of the Act) allows these previously ineligible persons to adjust status in the United States by paying a sum equivalent to five times the adjustment fee, plus the fee. Family unity program beneficiaries and children under seventeen years old are exempt from paying the additional sum.
Eligibility. To be eligible, individuals must 1) be physically present in the United States; 2) be eligible for immigrant classification and must have an immigrant visa number immediately available; 3) not be excludable from the United States under any provision of section 212(a) of the Act, unless all grounds of excludability have been waived; 4) properly file Form I-485, with the required fee; 5) properly file Supplement A to Form I-485 on or after October 1, 1994; 6) pay the additional sum of five times the fee, except in the case of family unity beneficiaries; and, 7) adjust status on or after October 1, 1994, and before the law sunsets on October 1, 1997.
The Fee. Persons applying for adjustment under the new section 245(i) of the Act must pay the standard filing fee of $130.00, plus an additional sum of $650.00, for a total of $780.00. The regulation states that the payment is not required "when the applicant is an unmarried child who is less than 17 years of age, or when the applicant is the spouse or unmarried child less than 21 years of age of a legalized alien and is qualified and has applied for voluntary departure under the family unity program."
Supplement A. INS has indicated that I-485s will be accepted without Supplement A, and that individuals may file the supplement at a later time. The regulation states that "an applicant will be allowed the opportunity to amend an adjustment application filed on or after October 1, 1994, to request consideration under section 245(i) of the Act, if it appears that the individual is not otherwise eligible to adjust." If an applicant is eligible under section 245(i), but does not, at the time of initially filing the I-485, file the Supplement A form, or pay the additional sum, "the applicant will be notified in writing of the intent to deny the adjustment of status application unless Supplement A to Form I-485, and any required additional sum is filed within thirty days of date of the notice."
Motions to Reopen or Reconsider. The provisions of section 245(i) do not apply to applications filed before October 1, 1994. Therefore, the provisions do not apply to motions to reopen or reconsider applications for adjustment filed before October 1, 1994. Individuals otherwise eligible may, however, file new applications, along with Supplement A, and the additional sum required by section 245(i) of the Act. INS has stated that new applications may not be filed for special programs such as the Chinese Student Protection Act, where the formal application period has officially ended.
Processing of Immigrant Visas Abroad. The preamble to the rule mentions the 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 does not apply to those who are in legal status at the time of their departure or to family unity beneficiaries. The Department of State will publish interim regulations on this provision.
Effective Date and Comments. The law took effect on October 1, 1994, and sunsets on October 1, 1997. AILA members wishing to comment are encouraged to contact Howard Gordon or Jeanne Butterfield at the AILA National Office, or to Adjustment of Status Task Force Chairperson Jim Tom Haynes.
Most of the material covered in the regulation is consistent with information disseminated in previous policy statements of INS, and with discussion during AILA's teleconference on the adjustment law that took place on September 29, 1994.