The immigration law signed by President Clinton on September 30, 1996 is over 300 pages long. This article highlights some of the more important sections of the new law and discusses their effects on prospective immigrants. Hypertext links are provided for those who wish to read a more detailed discussion of a particular topic.
- 1. Entitlement Bars
- 2. Relief From Entitlement Bars Through Adjustment of Status
- 3. End of the Late Amnesty Programs
- 4. Affidavits of Support
- 5. Consolidation of Deportation and Exclusion Proceedings into Removal Proceedings
- 6. Requests for Asylum
- 7. J Waivers for International Medical Graduates
- 8. Waivers of Fraud or Misrepresentation
- 9. Certification of Health Care Workers
- 10. No Consulate Shopping for Visa Overstays
1. Entitlement Bars
Perhaps the most significant change in the new law is the establishment of the so-called “Entitlement Bars” which will become effective on April 1, 1997.
Persons who remain illegally in the U.S. after April 1, 1997 for a total of more than 180 days but less than one year, and who leave the U.S. prior to the institution of removal proceedings, are inadmissible from the U.S. for three years from their date of departure.
Persons who remain illegally in the U.S. after April 1, 1997 for a total of one year or more, and who leave the U.S. prior to the institution of removal proceedings, are inadmissible from the U.S. for 10 years from their date of departure.
Exceptions from both the above bars exist for minors, asylees, family unity beneficiaries and battered spouses and children. Waivers are available to spouses, sons and daughters of U.S. citizens and permanent residents if “extreme hardship” would result to the qualifying relative.
In addition, the law imposes five-year, 10-year and 20-year bars for aliens ordered removed from the U.S. by the Immigration Courts or the Board of Immigration Appeals.
Finally, the law imposes a permanent bar for aliens who were unlawfully present in the U.S. for an aggregate period of one year or who have been ordered removed, and who subsequently enter or attempt to enter the U.S. without being lawfully admitted. Some aliens, upon approval by the Attorney General, may be admitted to the U.S. after 10 years.
2. Relief From Entitlement Bars Through Adjustment of Status
Much confusion exists concerning the effective date of the three and 10-year entitlement bars upon adjustment of status. Section 375 of the new law amends current law to prohibit adjustment of status for persons who have violated the entitlement bars.
However, Section 376 of the new law extends a section of the current law to permit such persons to adjust status upon payment of a fine. The fine which is presently $650 will rise to $1,000 on December 29, 1996. The section of law which permits adjustment of status for such persons was originally enacted in October 1994. The new law extends the effective date of this section until September 30, 1997. This coincides with the time that the entitlement bars will become fully effective. Whether Congress extends this provision past September 30, 1997 will determine the fate of several hundred thousand potential immigrants who are on waiting lists for permanent residence, but who have overstayed their authorized periods of stay in the U.S.
3. End of the Late Amnesty Programs
Section 377 of the new law strips Federal Courts of jurisdiction of almost all late amnesty applications. Over 400,000 persons holding Employment Authorization Documents under the Newman (LULAC), CSS, Zambrano and a variety of other class action suits will be affected. Only those few persons whose applications were submitted to the INS and rejected by an officer will be allowed to pursue their rights in court.
Already, the government has submitted motions in the courts to dismiss the various late amnesty suits. If the suits are dismissed, persons presently covered under these lawsuits will no longer be able to extend their work cards. Termination from employment may result.
4. Affidavits of Support
Section 551 of the new law requires all affidavits of support to be legally enforceable against the “sponsor”. The affidavit must bind the sponsor to maintain the alien at an income level of at least 125% of the federal poverty line.
The requirement must be enforceable by the alien, the Federal Government, or any state or political subdivision of a state. An affidavit of support remains enforceable against the sponsor until (1) the alien becomes a citizen, or (2) the alien accumulates 40 qualifying calendar quarters of work, whichever comes first.
To qualify as a sponsor, a person must be (1) at least 18 years of age; (2) be domiciled in the U.S., (3) be able to support both the sponsor’s and the alien’s family at an annual income level equal to at least 125% of the federal poverty guidelines. (Exceptions are made for members of the U.S. Armed Forces petitioning for their spouse or child.) Sponsors must notify INS whenever they move. Failure to do so could result in fines.
In general, the sponsor who signs the affidavit of support must also be the person petitioning for admission of his or her relative. If the petitioner does not meet the 125% minimum income requirement, he or she may find another individual who does meet the income requirements and is willing to accept joint and several liability with the petitioner.
The law requires the Attorney General to issue a standard affidavit of support form by January 1, 1997. The new requirements are scheduled to become effective between 60 and 90 days after the new form is issued.
5. Consolidation of Deportation and Exclusion Proceedings into Removal Proceedings
As of April 1, 1997, the new law consolidates deportation and exclusion proceedings into “removal” proceedings. The result is to limit most forms of relief from deportation while it expands forms of relief for persons who would formerly have been in exclusion proceedings.
For example, voluntary departure is limited to 120 days (with an optional bond) prior to the commencement or conclusion of removal proceedings and 60 days with a mandatory bond after the conclusion of a removal proceeding. Presently, it is common for respondents in deportation proceedings to receive up to six months of voluntary departure. Applicants in exclusion proceedings are not currently eligible for voluntary departure.
Suspension of deportation and waivers for long-time permanent residents (“212C” waivers) are consolidated into a new form of relief called “cancellation of removal”. In general, the standards for what was suspension of deportation and 212C waivers are tightened considerably. The definition of an “aggravated felon” (Section 321) is modified to include almost all persons who have been convicted of a felony. Aggravated felons are generally ineligible for 212C relief.
Section 304 amends hearing procedures, eliminating the current requirement that notices be provided in Spanish as well as in English.
Section 380 provides for penalties of up to $500 per day for aliens subject to final orders of removal who willfully fail or refuse to depart, make timely application for travel documents, or present themselves for removal before the INS. This section becomes effective on April 1, 1997.
Section 306 of the new law practically immunizes the Immigration Courts and the Board of Immigration Appeals from judicial review. The Federal Appeals Courts are stripped of jurisdiction to review denials of discretionary relief including voluntary departure, adjustment of status, cancellation of removal, and waivers under 212(c), 212(h) (for criminal convictions), and 212(i) (for fraud or misrepresentation). Where judicial review still exists (e.g., contested orders of removal and requests for asylum), the amount of time permitted to submit a Petition for Review to the Federal Appeals Court is shortened from 90 to 30 days. No longer will the submission of a Petition for Review result in an automatic stay of removal for the alien. The standards for obtaining a writ of habeas corpus are tightened considerably. The effective dates of the judicial review provisions are complex and do not conform with the April 1, 1997 effective date of other provisions of the law.
6. Requests for Asylum
Section 604 of the new law provides that Requests for Asylum submitted after April 1, 1997 must be filed within one year after an alien arrives in the U.S. Asylum will not be granted to a person whose previous Request for Asylum has been denied.
However, both the above time limit and the previous application prohibitions do not apply in the case of “changed circumstances” which materially affect eligibility for asylum or “extraordinary circumstances” relating to the delay in filing an application. The law bars judicial review of a decision by the Attorney General as to whether either of these circumstances exist.
The new law provides that, for the first time, the government may charge a fee for submitting a Request for Asylum. The number of asylum officers is to be increased by at least 600 during 1997.
Normally, in “the absence of exceptional circumstances”, an asylum interview will take place within 45 days after a Request for Asylum is submitted, and a decision will be rendered within 180 days. No work card will be effective until 180 days after the Request for Asylum is submitted to INS. Any administrative appeal must be filed within 30 days.
The INS must notify a person filing an asylum application (1) that he or she may be represented by an attorney and (2) of the consequences of knowingly filing a frivolous application. An alien found to have filed a frivolous application is permanently ineligible for any immigration benefits.
Section 601 amends the definition of “refugee” to provide that a person who has been forced to abort a pregnancy or to undergo involuntary sterilization or who has been persecuted for resistance to coercive population control programs, is deemed to be persecuted on account of political opinion. However, not more than 1,000 refugees or asylees may be admitted under this provision.
7. J Waivers for International Medical Graduates
Section 622 of the new law subjects physicians seeking J waivers through federal agencies to the same standards as physicians sponsored by state agencies under the “Conrad 20” program.
The most significant change is that all physicians who failed to receive approval of their waiver requests from INS prior to October 1, 1996 are subject to the requirement that they practice medicine for an employer located in a Health Professional Shortage Area (HPSA) or a Medically Underserved Area (MUA) for a minimum of three years.
Before enactment of the new law, most physicians obtaining J waivers proceeded directly to apply for permanent resident status, usually by means of a national interest waiver. Now, all physicians receiving interested government agency waivers must obtain H-1B visas for three years or more.
8. Waivers of Fraud or Misrepresentation
The government has always been strict in dealing with persons who have attempted to gain an immigration benefit through misrepresentation. Whether the offense was serious (e.g., entering the U.S. using a false name) or minor (e.g., reentering the U.S. on a tourist visa or a visa waiver in order to continue working in the U.S.), the rule is that the person is inadmissible to the U.S. and can not obtain permanent residence or even a temporary visa without obtaining a “fraud waiver”.
A fraud waiver could be obtained fairly readily if one were the spouse, parent, son or daughter of a U.S. citizen or permanent resident by demonstrating the hardship to the legal relative. In practice, most persons who obtained fraud waivers did so on the basis of being the parents of a child born in the U.S.
Section 349 of the new law provides that as of September 30, 1996 only spouses and sons and daughters of U.S. citizens or permanent residence may obtain fraud waivers, and only if “extreme hardship” to the legal relative can be demonstrated. Being the parent of the U.S. citizen or permanent resident is no longer grounds for a fraud waiver. Under the new law, Federal Courts are stripped of their jurisdiction to review administrative denials of fraud waiver.
9. Certification of Health Care Workers
Section 343 of the new law makes foreign health care workers (other than physicians) inadmissible unless they present credentials verifying their training, licensing, experience and competency in English. For registered nurses, this means that they must pass the CGFNS (Commission on Graduates of Foreign Nursing Schools) examination. This is true even though the RN has obtained a license in a state which does not require the CGFNS as a prerequisite to state licensure.
Since this requirement became effective on September 30, 1996, many nurses and other health care professionals in the process of obtaining temporary visas or permanent residence may be denied immigration benefits despite their possession of an offer of employment, a labor certification, and a license in the state of intended employment.
10. No Consulate Shopping for Visa Overstays
Section 632 of the new law provides that as of September 30, 1996 any alien who has overstayed his period of authorized stay in the U.S. must return to the country of his nationality in order to obtain a new visa. If there is no consulate in his country which issues visas, the Secretary of State may designate a third country in which the U.S. Consulate will accept the person’s visa application.
Until the passage of the new law, many persons in the U.S. who had overstayed would arrange to be interviewed for nonimmigrant visas in Canada or Mexico.
The law provides for an exception to this requirement where “extraordinary circumstances” are found by the Secretary of State. Recently the U.S. Consulate in Toronto, Canada ruled that a physician who had an H-1B petition submitted on his behalf prior to the expiration of his J status demonstrated “extraordinary circumstances” and agreed to accept applications for H-1B visas from such physicians.
– Former INS Trial Attorney Carl Shusterman
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Carl Shusterman served as an INS Trial Attorney (1976-82) before opening a firm specializing exclusively in US immigration law. He is a Certified Specialist in Immigration Law who has testified as an expert witness before the US Senate Immigration Subcommittee. Carl was featured in the February 2018 edition of SuperLawyers Magazine.
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