Guest Columnist – Paul Parsons
Paul Parsons is an American Immigration Lawyers Association Member practicing in Austin, Texas since 1978. He is chairman of the State Bar of Texas Committee on Laws Relating to Immigration and Nationality.
This article is intended to explain the provisions of the new immigration laws which require a decision on whether or not to depart the United States prior to September 27, 1997. This memorandum is not intended to replace the advice of an immigration lawyer after a review of each individual situation. You are encouraged to schedule a formal consultation to discuss how the new laws might affect you and your family.
Section 245(i) of the Immigration and Nationality Act is a temporary provision that will be in effect until September 30, 1997. This provision allows many persons who would not usually be eligible to apply for adjustment of status to lawful permanent resident within the U.S. to pay a penalty of $1000.00 and file the application while remaining in this country. Two categories of applicants have benefited from this law:
1. Persons who unlawfully entered the U.S. Prior to this law, even the spouse of a U.S. citizen who unlawfully entered the U.S. was forced to apply for lawful permanent residency (also known as a “green card”) at a U.S. consulate in his or her home country.
2. Persons who lawfully entered the U.S. but violated the terms of their temporary status. Immediate relatives (spouses of a U.S. citizen, parents of a U.S. citizen over age twenty-one, and unmarried children under age twenty-one of a U.S. citizen) who entered the U.S. legally are eligible to apply within the U.S. without paying the $1000 fine. These immediate relatives of a U.S. citizen will continue to be eligible to apply for permanent residence in the U.S. even if 245(i) is not extended unless they become subject to the new three year or ten year bars.
At this point, it is still unclear whether Congress will extend Section 245(i) past September 30, 1997. Although the Senate has passed a bill (S. 1022) including an extension of Section 245(i), the House bill (H.R. 2267) does not have an extension provision. These differences will be resolved in September. Therefore, it is extremely important to contact your Senators and Representatives to express your support for the extension of the penalty provision, Section 245(i).
If Section 245(i) is not extended, then foreign nationals who unlawfully entered the U.S. or lawfully entered but violated the terms of their status will be required to return to their home country and wait 90 days before they are eligible to receive an immigrant visa at the U.S. Consulate. Unfortunately, the new illegal immigration law may prevent these foreign nationals from re-entering the U.S. for three to ten years.
THREE YEAR AND TEN YEAR BARS FROM REENTERING THE UNITED STATES:
The Illegal Immigration Reform and Immigrant Responsibility Act of 1996 imposes new bars on persons “unlawfully present” in the U.S. for certain periods of time, as follows:
1. A person unlawfully in the U.S. for more than 180 consecutive days after April 1, 1997, who departs from the U.S. will be barred from seeking admission to the U.S. for three years. INA Section 212(a)(9)(B)(i)(I).
2. A person unlawfully present in the U.S. for more than one consecutive year after April 1, 1997, who departs from the U.S. will be barred from seeking admission to the U.S. for ten years. INA Section 212(a)(9)(B)(i)(II).
3. A person unlawfully present in the U.S. for an aggregate period of more than one year after April 1, 1997, who departs from the U.S. and attempts to re-enter or does re-enter without being admitted (i.e. without inspection) will be barred from seeking admission to the U.S. permanently. INA Section 212(a)(9)(C).
The INS is currently interpreting the term “unlawfully present” broadly to include persons involved in federal court litigation, persons granted deferred action, persons granted voluntary departure, persons with pending applications for cancellation of removal and persons with pending applications for withholding of removal. The term even includes persons who have filed adjustment applications, traveled abroad and re-entered in parole status and worked before an employment authorization card has been issued.
This harsh new law will affect many foreign nationals unlawfully present in the U.S. after September 27, 1997 (180 days after April 1, 1997) if they depart the U.S. for any reason. The departure may be voluntary or involuntary. If a person voluntarily departs for a funeral of a parent, a wedding of a relative, a business trip or any reason at all, he or she will be barred from seeking admission to the U.S. for the next three or ten years. The bars will also apply to persons arrested by the INS and removed “voluntarily” from this country after September 27, 1997. Persons ordered removed by an immigration judge will be barred for many additional years.
EXCEPTIONS:
There are some limited exceptions to the three year and ten year bars from re-entry to the U.S:
1. Children. Any time that a person is unlawfully present in the U.S. prior to age eighteen will not count towards the 180 days or one year of unlawful presence.
2. Family Unity. Periods of stay in the U.S. will not be counted as unlawful status after an approval under the “Family Unity” law. This law only applies to the spouse or unmarried child of a person who obtained lawful permanent residence through the “amnesty” law. The relatives of a person approved for “amnesty” must have arrived in the U.S. before May 5, 1988. Relatives of a person approved under the agricultural “amnesty” must have arrived before December 1, 1988.
3. Battered spouses and children. Battered and abused spouses and children of lawful permanent residents or U.S. citizens will not be subject to the three and ten year bars if there is a substantial connection between the unlawful presence and the abuse.
4. Asylees. Periods of stay in the U.S. will not be counted as unlawful status if a bona fide asylum application is pending (unless the applicant is employed without authorization).
Please note that these exceptions only apply to the three and ten year bars, not the third permanent bar. If a person is subject to the third bar, he or she may only seek consent to reapply for admission after being outside of the U.S. for ten years.
WAIVERS:
Extreme hardship. A waiver may be available for the spouse or son or daughter of a U.S. citizen or lawful permanent resident if the INS determines the three or ten year bars to immigration would result in “extreme hardship” to the U.S. citizen or to the U.S. permanent resident spouse or parent (this waiver is not available on the basis of extreme hardship to a U.S. citizen or lawful permanent resident child). Extreme hardship requires a high standard of proof and we expect that this waiver will be very difficult to obtain.
In addition, a foreign national may be eligible for lawful permanent residency if he or she has resided within the U.S. for more than ten years. This law is normally used as a defense to a deportation case (now cancellation of removal). The foreign national would have to convince an immigration judge that he or she has resided in the U.S. for more than ten years, is a person of good moral character, and removal would cause an “exceptional and extremely unusual hardship” to a U.S. citizen or lawful permanent resident spouse, parent or child. This is an extremely difficult standard to prove.
A DECISION MUST BE MADE BY EACH IMMIGRANT IN THE UNITED STATES WHETHER TO DEPART THE U.S. BEFORE SEPTEMBER 27, 1997:
Each person who hopes to eventually qualify for lawful permanent resident status must carefully consider this complex new immigration law and make a decision prior to September 27, 1997 whether to remain in the U.S.
It is important to keep in mind that most people who have been unlawfully present in the U.S. more than 180 days after September 27, 1997, will probably be barred from obtaining legal status in the U.S. for three years if they depart this country for any reason. For example, during the next five years, the INS plans to hire 5,000 additional border patrol officers. Therefore, if you are arrested and returned to your country after September 27, 1997, and have been unlawfully in the U.S. for more 180 days, you will probably be subject to the three year bar. The bar will increase on April 1, 1998 to ten years for most persons who have been unlawfully present in the U.S. for more than one year.
DOCUMENTATION OF DEPARTURE:
Persons who choose to depart the U.S. prior to September 27, 1997 must save written documentation of the date, time and place of departure proving that he or she left the U.S. For example, persons who fly out of the U.S. before September 27, 1997, should keep copies of their airline tickets and boarding passes.
As soon as you have left the country, you are advised to take form G-146 to the nearest U.S. consulate for confirmation that you have departed the U.S. and are now physically outside the country.
In addition to documenting the date of departure from the U.S., persons who later intend to immigrate to the U.S. should maintain continuous documentation that they are residing outside the U.S. This documentation could include but is not limited to checkstubs from employment, rent receipts, receipts from visits to doctors and dentists, school records, and financial records. It would be wise to open a checking or savings account in your home country, frequently use that account each month and keep the returned checks. The more documentation a person has of physical presence outside the U.S., the less likely this will be an issue when it is finally time to apply for visas to reenter the United States at one of the U.S. consulates abroad.
Disclaimer: This newsletter is provided as a public service and not intended to establish an attorney client relationship. Any reliance on information contained herein is taken at your own risk. The information provided in this article has not been updated since its original posting and you should not rely on it until you consult counsel to determine if the content is still valid. We keep older articles online because it helps in the understanding of the development of immigration law.