More IIRAIRA Provisions Take Effect

HQ 50/5.12-1 96 ACT.010 HQ 70/23-P

Subject: IIRAIRA provisions affecting INA section 245 adjustment eligibility, amount of the additional sum required under INA section 245(i), and rescission of adjustment under INA section 246.

Date: December 20, 1996

To: Regional Directors
District Directors
Service Center Directors
Officers in Charge
Forms center administrators

From: Office of Examinations

On September 30, 1996, Public Law 104-208, the Illegal Immigration Reform and Immigrant Responsibility Act of 1996 (IIRAIRA), was signed into law. Several of its positions affect adjustment of status under the Immigration and Nationality Act, as amended (INA). Service policy regarding implementation of those provisions is discussed below.

Background

Section 245(a) of the INA provides that the status of an alien who was inspected and admitted or paroled into the United States and who is otherwise eligible to receive an immigrant visa may be adjusted by the Attorney General to that of an alien lawfully admitted for permanent residence. Section 245(c) of the INA enumerates certain classes of aliens who are ineligible for the benefits of section 245(a). Section 245(i) of the INA, in turn, permits certain classes of aliens who are ineligible for the benefits of adjustment of status notwithstanding the restrictions of section 245(c). With the exception of children under seventeen and certain legalization beneficiaries, however, such persons are required to pay the base Form I-485 filing fee plus a prescribed “additional sum” at the time they apply for adjustment of status in order to obtain the benefits of section 245(i).

New grounds of ineligibility under section 245(c) of the INA

Section 245(c)(7) of the INA

Section 245(c)(7) of the INA, which takes effect on December 29, 1996, provides that beneficiaries of employment-based immigrant visa petitions are ineligible for adjustment under section 245(a) if they are not in a lawful nonimmigrant status. This provision expands the classes of aliens ineligible to adjust their status pursuant to section 245(a) of the INA, since, under section 245(c)(2), only employment-based visa petition beneficiaries who are in an unlawful immigration status on the date of filing the adjustment application are barred from adjusting under section 245(a). The new section 245(c)(7) renders aliens who are not presently in a valid nonimmigrant status -- such as parolees and certain other persons who are otherwise authorized to be physically present in the United States but have not been classified as nonimmigrants – ineligible to apply for adjustment of status under section 245(a) on the basis of an approved employment-based visa petition. Effective December 29, 1996, such persons may only adjust status pursuant to section 245(i) of the INA.

Section 245(c)(8) of the INA

Section 245(c)(8) of the INA, also effective December 29, 1996, applies to “any alien who was employed when the alien was an unauthorized alien, as defined in section 274A(h)(3), or who has otherwise violated the terms of a nonimmigrant visa”. Read without reference to any other statutory provision, section 245(c)(8) would appear to render ineligible for adjustment of status under section 245(a) of the INA all aliens who have at any time: (1) been employed in the United States without authorization, or (2) otherwise violated the terms of a nonimmigrant visa. However, section 245(c)(2) of the INA – which was not amended by IIRAIRA – renders ineligible to adjust status under section 245(a) only those aliens who engaged in unauthorized employment subsequent to January 1, 1977, or were not in a lawful immigration status on the date of filing of the application for adjustment of status. Moreover, section 245(c)(2) of the INA specifically exempts immediate relatives and certain special immigrants from the bar to adjustment under section 245(a).

Notwithstanding the reference to “all aliens” in section 245(c)(8) of the INA, it is the position of the Service that the language of section 245(c)(8) does not supersede the more specific language of section 245(c)(2) exempting certain immediate relatives and others from the bar to adjustment under section 245(a). See 2B Sutherland Stat. Const. Section 51.02 at p.121. Immediate relatives and special immigrants under section 101(a)(27)(K), (L), or (M) of the INA who have engaged in unauthorized employment or otherwise violated the terms of a nonimmigrant status therefore continue to be eligible to adjust status under section 245(a) of the INA and are not required to pay the additional section 245(i) sum. Such persons, however, must pay the base filing fee required of other adjustment applicants under section 245(a) of the INA.

New additional sum required for adjustment applications under INA section 245(i)

Section 376(a) of the IIRAIRA, which goes into effect December 29, 1996, amends section 245(i) of the INA by removing the previous formula for calculating the additional filing amount, and replacing it with a flat sum of $1,000. The increase to the additional filing sum is the sole revision to section 245(i) of the INA. Children under seventeen and certain legalization beneficiaries, as described in section 245(i)(l)(i) of the INA, therefore, continue to remain exempt from payment of the additional sum. Effective December 29, 1996, therefore, with these exceptions, aliens applying for adjustment of status under section 245(i) will be required to pay $1,000 plus the Form I-485 base filing fee. The new sum applies to all such applications for adjustment of status which are filed on or after December 29, 1996. The effective filing date for Form I-485 applications is still governed by 8 CFR 103.2(a).

The Service will be amending 8 CFR 103.7(b), 245.10(a)(6) and 245.10(b) to reflect the revised fee required under section 376(a) by Pub. L. 104-208. In the interim, INS offices and Forms Centers have been instructed to correct the instructions to Supplement A to Form I-485, as well as other information which they distribute concerning the section 245(i) fee requirement, to alert the public to the change in the additional sum required for adjustment of status under section 245(i).

Rescission of adjustment of status under section 246 of the INA

The IIRAIRA has amended the law regarding rescission of adjustment of status by adding the following sentence to section 246(a) of the INA:

Nothing in this subsection shall require the Attorney General to rescind the alien’s status prior to commencement of procedures to remove the alien under section 240, and an order or removal issued by an immigration judge shall be sufficient to rescind the alien’s status.

Under this section, effective April 1, 1997, it will no longer be necessary to rescind an alien’s adjustment of status prior to placing the alien into removal proceedings.

Impact of amended sections 212(a)(6)(A) and 212(a)(9)(B)(ii) of the INA

Section 301 of the IIRAIRA, which goes into effect on April 1, 1997, creates several additional ground of inadmissibility. IIRAIRA section 301(c)(1) amended section 212(a)(6)(A) of the INA to provide as follows:

(A) Aliens Present Without Admission or Parole -
(I) In General. – An alien present in the United States without being admitted or paroled, or who arrives in the United States at any time or place other than as designated by the Attorney General, is inadmissible.

INA section 245(i)(1), on the other hand, continues to provide that:

(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… may apply to the Attorney General for the adjustment of his or her status to that of an alien lawfully admitted for permanent residence.

This office is seeking an opinion from the Office of the General Counsel as to whether 212(a)(6)(A) of the INA, as amended by IIRAIRA, affects the eligibility of aliens who entered without inspection to apply for adjustment under section 245(i)(1) of the INA.

This office is also seeking an opinion from the Office of the General Counsel as to whether another IIRAIRA amendment, which creates a new ground of inadmissibility in section 212(a)(9)(B)(ii) of the INA, affects the eligibility of certain aliens “unlawfully present in the United States” to apply for adjustment under section 245(i) of the INA.

Further instructions will be circulated at such time as the legal issues regarding these matters have been resolved.

[signed]
Louis D. Corcetti, JR.
Associate Commissioner