3 CHANGES IN NEW LAW
EFFECTIVE 12-29-96
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Three important provisions of the new immigration law signed by President Clinton
this fall became effective on Sunday, December 29, 1996. All three had to do with
legal immigration, specifically the process of adjustment of status to permanent
residence. These three changes are potentially among the most important provisions
of the new law.
The Fine Provision
Late in 1994, the law (section 245(I), Immigration and Nationality Act "INA") was
changed to permit certain persons in the U.S. to adjust their status to permanent
resident upon the payment of a fine. These persons formerly had to return to
their home countries in order to apply for immigrant visas to return to the U.S.
Congress reasoned that it would be better to assess fines which would be collected
by the U.S. government than to have the potential immigrants pay the money to
foreign airlines and hotels.
Initially, the fine was $650 and certain persons were exempted. Among these were
children under 17 years of age, family unity beneficiaries, and immediate relatives
of U.S. citizens who entered the U.S. with visas or paroles.
Starting December 29, 1996, the amount of the fee was increased to $1,000.
Employment-Based Immigrants
Another change in the law (section 245(c)(7), INA) affecting employment-based
immigrants also takes effect on December 29, 1996. This new section provides that
beneficiaries of employment-based visa petitions are not eligible for adjustment
of status to permanent resident if they are not in lawful nonimmigrant status.
Prior to December 29, only beneficiaries of employment-based visa petitions
who were in an unlawful immigration status on the day of filing an application
for adjustment of status were ineligible to adjust their status.
This new provision expands the class of employment-based potential immigrants
who are ineligible for adjustment of status to include parolees and certain
other persons who are unauthorized to be in the U.S. but who are other than
nonimmigrants.
Effective December 29, 1996, such persons may adjust their status to permanent
residents in the U.S. by paying a $1,000 fine until section 245(I), mentioned above.
Visa Violators
Finally, the new law adds another section of the law (section 245(c)(8), INA) to bar
from adjustment of status "any alien who was employed when the alien was an
unauthorized alien...or who has otherwise violated the terms of a nonimmigrant visa."
However, another section of the law (section 245(c)(2), INA) exempts "immediate
relatives" and certain "special immigrants" from being barred from adjustment of
status. Since this latter more specific language supersedes the former more
general language, such visa violators who are immediate relatives or special
immigrants (under sections 101(a)(27)(K), (L), or (M), INA) are both eligible for
adjustment of status and exempted from paying the $1,000 fees. However, other
aliens who have violated the terms of their visas at any time may only apply to
adjust their status upon payment of the $1,000 fine unless they are otherwise
exempt under section 245(i).
Immediate relatives are spouses, children (unmarried and under 21 years of age),
parents (provided the petitioning son or daughter is at least 21 years of age) and
certain widows of U.S. citizens.
Section 245(i), INA
This section is scheduled to expire on September 30, 1997. Should Congress and the
President fail to extend this provision of the law, almost anyone in the above
categories who had not attained permanent residence prior to this date would be
rendered ineligible to adjust status in the U.S. beginning October 1, 1997.
The expiration of section 245(i) would also make it almost impossible for a person
subject to either the three-year or the ten-year bar (explained in an earlier
article) to obtain an immigrant visa.
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