Memo on 3/10 Year Bars and Section 245(i)
(96Act.034)
Subject: Processing of Section 245(i)
adjustment applications on or after the October 1, 1997 sunset
date; Clarification regarding the applicability of certain new
grounds of inadmissibility to 245(i) applications
Date: May 1, 1997
To: Regional Directors
District Directors
Officers in Charge
Service Center Directors
ODTF Glynco, GA
ODTF Artersia, NM
From: Office of Examinations
This memorandum provides additional guidance to
the field regarding implementation of section 245(i) of the
Immigration and Nationality Act, as amended (the
"Act"). In addition, this memorandum provides general
information regarding section 212(a)(9) of the Act. Finally, this
memorandum provides guidance on the effect of the new grounds of
inadmissibility found in sections 212(a)(6)(A) and 212(a)(9)(B)
of the Act, as amended by the Illegal Immigration Reform and
Immigrant Responsibility Act of 1996 (the "IIRAIRA"),
on applications for adjustment of status. Interim regulations
implementing these new provisions and revising existing
provisions will be published in the Federal Register at a later
date.
Section 245(c)(6) of the Act
Under IIRAIRA, Congress amended section
245(c)(6) of the Act by changing the reference to section
241(a)(4)(B) to section 237(a)(4)(B) of the Act. Section
237(a)(4)(B) of the Act renders any alien who has engaged, is
engaged, or at any time after admission engages in any terrorist
activity, as defined in section 212(a)(3)(B)(iii) of the Act
deportable. The Service has determined that any person who is
deportable under section 237(a)(4)(B) of the Act is ineligible to
adjust status under section 245(i) of the Act.
Impact of amended section 212(a)(6)(A) of
the Act on section 245 of the Act
Section 301 of the IIRAIRA, which went into
effect on April 1, 1997, created several additional grounds of
inadmissibility. IIRAIRA section 301(c)(1) amended section
212(a)(6)(A) of the Act to render inadmissible aliens who are
"present in the United States without being admitted or
paroled." As set forth in a previous memorandum (HQIRT
50/5.12, March 31, 1997), the INS General Counsel has determined
that this new ground of inadmissibility does not disqualify
aliens present in the United States without admission or parole
from adjustment of status under section 245(i) of the Act.
New section 212(a)(9)(A)(i) of the Act is
applicable to aliens ordered removed under new section 235(b)(1)
of the Act, as well as to aliens ordered removed at the end of
proceedings under new section 240 of the Act, if the section 240
proceedings were initiated upon the alien's arrival in the United
States. Under new section 212(a)(9)(A)(i) of the Act, any such
alien is inadmissible, including for purposes of adjustment of
status, for five years (and in certain cases longer) from the
date of the alien's departure or removal, unless the alien has
obtained the advance consent of the Service to reapply for
admission prior to completion of his or her statutorily mandated
stay abroad.
New section 212(a)(9)(A)(ii) of the Act, in
turn, applies to all other aliens who were ordered removed,
including aliens who were ordered excluded under pre-IIRAIRA
section 236 of the Act or deported under pre-IIRAIRA section 242
of the Act. Under new section 212(a)(9)(A)(ii) of the Act, any
such alien is inadmissible, including for purposes of adjustment
of status, for ten years (and in certain cases longer) from the
date of the alien's departure or removal, unless the alien has
obtained the advance consent of the Service to reapply for
admission prior to completion of his or her statutorily mandated
stay abroad.
It should be noted that new section
212(a)(9)(A) of the Act applies only if the alien has departed or
been removed from the United States subsequent to issuance of an
order.
General impact of amended section
212(a)(9)(B) and 212(a)(9)(C) of the Act on section 245 of the
Act
New section 212(a)(9)(B) and 212(a)(9)(C) of
the Act do not apply to applications for adjustment of status
filed by an alien who has not yet departed or been removed from
the United States. This interpretation is consistent with the
language of the statute which provides that an alien must depart
or be removed from the United States in order to become
inadmissible under new section 212(a)(9)(B) of the Act, or enter
or attempt to enter for purposes of new section 212(a)(9)(C) of
the Act. Such a person, however, if otherwise within the purview
of section 212(a)(9)(B) or 212(a)(9)(C) of the Act, will be
deemed inadmissible under that section of the Act for purposes of
adjustment of status if he or she departs from the United States
and subsequently reenters the United States by any means. The
Service will be issuing further guidance regarding the impact of
amended section 212(a)(9)(C) of the Act on section 245 of the Act
in the near future.
Impact of amended section 212(a)(9)(B) of
the Act on section 245 of the Act
With certain exceptions, effective April 1,
1997, under new section 212(a)(9)(B) of the Act, any alien (other
than an alien lawfully admitted for permanent residence) who has
been "unlawfully present" in this country for a period
of more than 180 days but less than one year, has voluntarily
departed from the United States, and again seeks admission to
this country within three years from the date of departure, will
be inadmissible to the United States. Similarly, with certain
exceptions, an alien (other than an alien lawfully admitted for
permanent residence) who has been "unlawfully present"
in the United States for a period of one year or more, departs
from the United States, and again seeks admission to this country
within ten years of the date of such departure or removal, will
be deemed inadmissible. In addition to the specific exceptions
set forth under new section 212(a)(9)(B)(iii) of the Act, no
period prior to April 1, 1997 may be counted toward the period of
"unlawful presence." See section 301(b)(3) of
the IIRAIRA. Thus, the earliest possible date an alien could be
deemed to be inadmissible under section 212(a)(9)(B) of the Act
would be September 28, 1997.
Section 245(c)(7) of the Act
Section 245(c)(7) of the Act, which took effect
on September 30, 1996, provides that any alien beneficiary of an
employment-based immigrant visa petition is ineligible for
adjustment under section 245(a) of the Act if he or she is not in
a lawful nonimmigrant status at the time he or she
applies for adjustment. This new section renders aliens who
are legally permitted to remain in the United States, such as
parolees, but who are not among the classes of nonimmigrants
defined in section 101(a)(15) or other provisions of the Act,
ineligible to adjust status under section 245(a) of the Act on
the basis of an approved employment-based immigrant petition. It
should be noted, however, that the section 245(c)(7) bar does not
apply to an alien who was in a lawful nonimmigrant status at the
time he or she applied for adjustment of status, subsequently
departed from the United States, and then reentered this country
pursuant to an approved advance parole. (For additional
information on the Service's policy regarding implementation of
section 245(c)(7) of the Act, please refer to the memorandum
titled "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", December 20, 1996, HQ 70/23-P).
Clarification of the term "otherwise
violated the terms of a nonimmigrant visa" in new section
245(c)(8) of the Act
An alien will not be deemed to have
"otherwise violated the terms of a nonimmigrant visa"
merely by filing an application for adjustment of status,
provided that such filing was in accordance with 8 CFR 103.2(a)
and occurred prior to the expiration of the alien's nonimmigrant
status. Further, for purposes of section 245(c)(8) of the Act, an
alien will not be deemed to have "otherwise violated the
terms of a nonimmigrant visa" if the alien: (a) is eligible
for relief under 8 CFR 245.1(d)(2); (b) was granted a change of
nonimmigrant status pursuant to 8 CFR 248.1(b); (c) was granted
an extension of nonimmigrant stay pursuant to current Operations
Instruction 214.1(c)(5) or any analogous previous Operations
Instruction; (d) was granted an extension of nonimmigrant stay
based on a timely filed extension application which the Service
approved after the alien's authorized nonimmigrant stay expired;
or (e) was granted reinstatement to student status pursuant to 8
CFR 214.2(f)(16) on the basis of circumstances beyond the
student's control.
Clarification of the term "unauthorized
alien" in new section 245(c)(8) of the Act
For purposes of section 245(c)(8) of the Act,
an alien will not be deemed to be an "unauthorized
alien" as defined in section 274A(h)(3) of the Act while his
or her properly filed Form I-485 application is pending final
adjudication, if the alien has otherwise obtained permission from
the Service to engage in employment, of if the alien: (a) has not
previously engaged in unauthorized employment at any time; (b)
was authorized, at the time of filing the adjustment application,
to be employed by his or her current employer pursuant to a
nonimmigrant classification permitting such employment (including
any on-campus employment permitted under the Service's
regulations governing F or J nonimmigrant students); and (c)
would otherwise have been authorized to continue employment had
he or she not filed the application for adjustment of status. In
all other cases, the adjustment applicant must await issuance of
an employment authorization document ("EAD") from the
Service before he or she may lawfully engage in employment.
Further, in all cases, if the district director or service center
director denies the alien's application for adjustment of status,
any employment authorization granted to the alien on the basis of
the adjustment application will be subject to termination
pursuant to 8 CFR 274a.14(b).
Treatment of immediate relatives and certain
special immigrants under new section 245(c)(8) of the Act
By its terms, new section 245(c)(8) of the Act
applies to "all aliens." Unlike section 245(c)(2) of
the Act, this section does not expressly exempt immediate
relatives or certain special immigrant from the bar to
adjustment. Despite the reference to "all aliens" in
new section 245(c)(8) of the Act, however, it is the position of
the Service that section 245(c)(8) does not supersede the more
specific language of section 245(c)(2) of the Act. For this
season, immediate relatives as defined in section 201(b) or
special immigrants described in sections 101(a)(27)(H),(I),(J),
or (K) of the Act who have at any time engaged in unauthorized
employment or otherwise violated the terms of a nonimmigrant
status, if admissible, continue to be eligible to adjust status
under section 245(a) of the Act. As is currently the case, such
individual are not required to pay the additional sum required
for filing an adjustment application pursuant to section 245(i)
of the Act. See 8 CFR 245.1(b)(4),(5) and (6). These
persons are still required, however, to pay the base filing fee
required of other adjustment applicants under section 245(a) of
the Act. See 8 CFR part 103.7(b)(1).
Completion of processing of pending section
245(i) adjustment applications
An application for adjustment of status filed
subsequent to September 30, 1994 and prior to October 1, 1997
shall be adjudicated to completion by an officer of the Service,
regardless of whether the final decision is made after September
30, 1997. The Service may consider a motion to reopen or
reconsider an application for adjustment of status on the basis
of section 245(i) of the Act only if: (1) the application for
adjustment of status was filed on or after October 1, 1994 and
before October 1, 1997, and (2) prior to October 1, 1997, the
applicant submitted Supplement A to Form I-485, any additional
sum required by section 245(i) of the Act, and any other required
documentation.
This memorandum has the concurrence of the
Office of Field Operations.
Louis D. Crocetti, Jr.
Associate Commissioner