DOS Cable on Immigration Law Changes Affecting Adjustments and IV Issuance
SUBJECT: IMMIGRATION LAW CHANGES AFFECTING ADJUSTMENT OF STATUS AND IV ISSUANCE
1. Summary: Out-of Status aliens will be permitted to apply for adjustment of status in the United States effective October 1, 1994. At the same time they cannot receive IVS overseas within 90 days of departure from the United States. Posts are asked to take immediate step to notify IV beneficiaries who may be affected. End Summary.
2. INA Changes. The Department of State appropriations bill has passed Congress, with amendments to INS's Sections 212 and 245. The President is expected to sign the bill shortly. Effective October 1, 1994, applicants who are out of status or who entered without inspection will no longer be prohibited from applying to INS for adjustment of status to permanent resident. Most such applicants will have to pay INS a sum equivalent to five times the current processing fee plus the processing fee. These applicants may still opt instead to obtain their immigrant visas overseas but they must now have been outside the United States for at least 90 days before issuance of the immigrant visa at a foreign service post. These changes apply to all immigrant visa categories (i.e. IR preferences, diversity).
3. Long Term Consequences: VO is preparing the required regulations to implement the new law and CA is assessing the amendments' impact on operations. For example, it is anticipated that a substantial portion of many post IV workload will ultimately be reduced as affected aliens opt for adjustment of status. Both will be addressed in septels. However, there are immediate consequences for posts IV processing that must be addressed now.
4. Actions by Post. Following are steps that post must take, in order of descending priority.
5. Aliens being scheduled for IV appointments in October and thereafter: We do not want IV applicants who are out-of-status in the US to arrive at post expecting to receive their visas, only to learn that they must remain outside the US for 90 days before processing can be completed on their immigrant visa applications.
All Packet 4s should include a cover letter (see language in paragraph 6). The notice should be the first document applicant will see upon opening the envelope. If post is aware that an applicant is in the United States, post should not schedule an appointment nor send Packet 4 but only informal letter in lieu of Packet 4 (see paragraph 7).
6. Text of cover letter to Packet 4: QUOTE: Recent changes in immigration law now permit applicants in the United States who are not in lawful visa status to apply for adjustment of status to permanent resident through an office of the Immigration and Naturalization Service (INS) in the United States. Most such applicants who do not wish to adjust status in the United States through INS but prefer to obtain their immigrant visa at an embassy or consulate must remain outside the United States for at least 90 days before they can can [sic] complete processing of their immigrant visa.
QUOTE: If you are not in the United States, then these changes do not affect you and we will continue processing your case as usual. Your interview appointment information is attached.
QUOTE: If you are in the United States and are not in lawful status and want to apply for your immigrant visa at this post, you must remain outside the United States for at least 90 days before we can complete processing of your visa. (Spouses and children of legalization beneficiaries who have applied to INS for benefits under the "family unity" provision in Section 30) of the Immigration Act of 1990 are not subject to this 90 day requirement). Please let us know if this is the case.
QUOTE: If you are in the United States and will apply for adjustment of status within INS, disregard the interview appointment information in this letter and contact INS directly, and inform us of your plans so we may return your file to INS for processing. UNQUOTE.
7. Text of informational letter in lieu of Packet 4 for applicants in the United States: QUOTE: Recent changes in immigration law now permit applicants in the United States who are not in lawful visa status to apply for adjustment of status to permanent resident through an office of the Immigration and Naturalization Service (INS) in the United States. Most such applicants who do not wish to adjust status in the United States through INS but prefer to obtain their immigrant visa at an embassy or consulate must remain outside the United States for at least 90 days before they can complete procession of their immigrant visa.
QUOTE: If you are in the United States and are not in lawful visa status and want to apply for your immigrant visa at this post, you must remain outside the United States for at least 90 days before we can issue your visa. (Spouses and children of legalization beneficiaries who have applied to INS for benefits under the "family unity" provision in Section 301 of the Immigration Act of 1990 are not subject to this 90 day requirement). Please notify us if you wish us to continue processing your case.
QUOTE: If you are in the United States and want to apply for adjustment of status with INS, contact INS directly and inform us of your plans so we can return your file to INS for processing. We will not proceed further unless we hear from you. UNQUOTE.
8. Cases being processed at post but not yet ready for appointments: Post should send a special notice (see paragraph 9) to all applicants who are not yet ready for appointment scheduling but whose cases are being actively processed by posts. Such cases include applicants who have already been reported documentarily qualified to VO but are still awaiting visa number allocation; applicants for whom posts are processing clearances; and applicants who have been send Packet 3 within the past year by post or NVC (or TIVPC) who have not yet responded. (Per 9 Fam 42.52 PN 3.9, applicants who were sent Packet 3 more than a year ago but who have not responded are considered to be "inactive" and do not warrant any action by posts unless the applicant reactivates case processing).
9. Text of special notice: QUOTE: Recent changes in immigration law now permit applicants in the United States who are not in lawful visa status to apply for adjustment of status to permanent resident through an office of the Immigration and Naturalization Service (INS) in the United States. Most such applicants who do not wish to adjust status in the United States through INS but prefer to obtain their immigrant visa at an embassy or consulate must remain outside the United States for at least 90 days before they can complete processing of their immigrant visa applications.
QUOTE: If you are not in the United States and are not in lawful visa status and want to apply for your immigrant visa at this post, you must remain outside the United States for at least 90 days before we can complete processing of your visa. (Spouses and children of legalization beneficiaries who have applied to INS for benefits under the "family unity" provision in Section 301 of the Immigration Act of 1990 are not subject to this 90 day requirement).
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. UNQUOTE.
10. Amending Packet J: Please amend future Packet 3S to include this information, using the language in Paragraph 9.
11. Refusal overcomes: Post should 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 applicants with appointments before that date whose cases were not completed will wave to remain outside the United States for 90 days before visa issuance.
12. Visa number availability for September: There has not been a regular allocation of family fourth (F4) numbers for September. With the return of unused F4 numbers, however, the Department anticipates that F4 allocations can be made for September to permit some issuances, such as to applicants who have overcome earlier refusals. The following F4 cut-off dates will govern September allocations.
F4: All chargeabilties (except INO, MEX, PHIL:
22NOV94
INO: 22APR93
MEXICO: 08NOV82
PHILIPPINES: 01JUL77
Posts which need F4 numbers or other extra numbers for September can submit visas FROG requests. The department will respond to the extent that visa availability permits.
13. Public inquiries: VO realizes the difficulties posts will have in responding to these changes and we regret that there was not more time to prepare for them. We also understand that posts will most likely receive many calls from beneficiaries asking for clarification and further information that can only come from INS. We are working with INS to get this information out to the public as quickly as possible. However, in the interim, posts are asked to provide inquirers with the information contained in this cable and refer additional questions to INS. Talbott.
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