H. Ronald Klasko, Esq
Dechert, Price & Rhoads
4000 Bell Atlantic Tower
1717 Arch Street
Philadelphia, PA 19103-2793
Daryl Buffenstein, Esq.
Paul, Hastings, Janofsky & Walker
600 Peachtree St., NE
Atlanta, GA 30308
Dear Ron and Daryl:
Thank you for your visit today, and for your prompt review of the items we sent to you earlier this week. Based on your comments of December 8 and on our conversation today, I believe that the attached list correctly sets out our common understanding on twenty-one points that you have raised in past liaison meetings. If there is any need for further revision or discussion, please let me know. Where these points set out interpretations of implementing decisions of the INS, those interpretations or decisions of course remain subject to change in the future. Nevertheless, they represent our best understanding of the current law and practice. Please feel free to circulate these materials among your members.
I am grateful for the efforts you and your colleagues have invested in our liaison meetings. I believe that the AILA-INS General Counsel Liaison meetings have been fruitful, and I look forward to continued progress.
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Items from the AILA-General Counsel Liaison Meetings
- An alien whose I-94 indicates “D/S” does not accrue unlawful presence time commencing when the INS initiates removal proceedings; rather, it commences from the date of an immigration judge’s order that the alien is removable. This assumes that the INS has not denied the extension of stay or change of status
- An alien who leaves the United States voluntarily and not under an order of removal after being placed in proceedings is not subject to the three-year bar if the alien’s unlawful presence was less than one year. Also, if an alien leaves the United States in such a situation, returns with a legal visa (such as an H-1B) and then travels without any further period of unlawful presence, the alien is not subject to the three-year bar upon return.
- Aliens who are paroled into the United States are considered “authorized by the Attorney General” to be in the U.S. and do not accrue unlawful presence time so long as they do not violate the terms of their parole.
- If a conditional resident timely files a condition removal application and the INS denies the application, the alien is not considered unlawfully present while awaiting removal proceedings and during removal proceedings in which the alien will renew the conditional residence removal application. If the condition removal application is not timely filed, the alien is considered unlawfully present unless the INS agrees that it was not timely filed for good cause.
- For purposes of counting the 120 day three-year bar tolling for a timely-filed extension of change of status application, the first day in considered to be the day after the expiration of Form I-94 and not the date of filing the extension or change of status application. The INS is considering AILA’s position that aliens with timely filed pending applications for change or extension of status should be treated as being “authorized by the Attorney General” during the time the application is pending with the INS after 120 days.
- If an alien has been granted voluntary departure at the conclusion of proceedings but files a timely appeal, a voluntary departure bond must be timely posted.
- An individual who is granted 212(c) relief prior to the passage of AEDPA for an aggravated felony cannot be placed in removal proceedings for the same offense. This does not apply, however, if the alien is subsequently convicted of another crime.
- The spouse or child of a grandfathered alien as of January 14 is also grandfathered for section 245(i) purposes. This means that the spouse or child retains his or her grandfathered status irrespective or whether or not the spouse adjusts with the principal. The pre-January 15 spouse or child also retains grandfathered status even after losing the status of spouse or child, such as by divorce or by becoming 21 years of age.
- Spouses or children accompanying or following to join a grandfathered alien are eligible to adjust under section 245(i). Therefore, even if the individual was not a spouse or child as of January 14, he or she can adjust under section 245(i) if he or she is a spouse or child at the time of the principal’s adjustment.
- Despite an unpublished, non-precedent opinion of the Board of Immigration Appeals that an alien is grandfathered for purposes of section 245(i) by virtue of applying for the DV lottery prior to January 15, 1998, the INS position is that such aliens are not grandfathered.
- INS has agreed that adjustment of status under NACARA is mandatory, and not discretionary. However, if a waiver is needed, adjudication of the waiver is discretionary.
- An alien does not accrue unlawful presence time when an immigration judge’s order denying voluntary departure is reversed on appeal. The period from the denial of voluntary departure to the grant of voluntary departure on appeal will be considered authorized by the Attorney General. It should be noted that unless otherwise in a period of stay authorized by Attorney General, the alien is accruing time unlawfully present while he or she is appealing the IJ ruling denying voluntary departure. Only after the alien prevails on appeal will the INS go back and determine that there was not net accrual of time unlawfully present during the time the ruling was on appeal.
- For purpose of the three and ten-year bars, where the INS Asylum Unit has referred an asylum case, the asylum application is considered pending while the alien is in proceedings, while an appeal is pending with the Board, and while review is pending in federal court. Pre-asylum reform applications that are denied by the INS are also considered pending for the purpose of section 212(a)(9)(B)(iii)(II) during the period between denial by the asylum office and renewal in front of the immigration court. Once it is renewed, the case is covered by the broader provision governing asylum applications.
- INS has agreed to administratively close all OSCs and issue NTAs where a non-aggravated felon respondent would have benefited in applying for 212(c) and where such respondent was not eligible under AEDPA, in anticipation of a regulation which will allow the cases to be repapered.
- INS has reinterpreted section 303(b)(2) of IIRAIRA and section 236(c) of the INA to require detention only when the alien was released from prison after the expiration of the TPCR. Any alien who was granted bond from INS custody before the expiration of the TPCR would not be subject to section 236(c). Such an alien has probably been released by now.
- Unlawful presence does not accrue while a conditional suspension grantee or a conditional cancellation of removal grantee is in conditional grantee status.
- For purposes of section 245(k), an alien may adjust under section 245(a) as long as the alien, as of the date of filing, has not violated status, has not engaged in unlawful employment, and has not had any violations of the terms and conditions of nonimmigrant admission, for a period in excess of 180 days in the aggregate subsequent to the alien’s last admission under which she is presently in the United States.
- The Commissioner issued a memorandum on April 19, 1999, wherein she discussed what status Cubans paroled from detention will have which will enable them to file for adjustment under the Cuban Adjustment Act. This memorandum was printed in 76 Interpreter Releases 684 (1999).
- The ACWIA statute and INS regulations are silent on whether an employer can accept reimbursement or compensation of the $500 H-1B job training fee from a source other than the alien. INS is unable to speak to whether third party reimbursement violate any Department of Labor rules. The INS is preparing final regulations on the ACWIA fee after consideration of public comments.
- With respect to 245(i) grandfathering, the INS continues to agree that the alien is grandfathered rather than any particular petition or application being grandfathered. The INS’ present position is that the pre-January 15 petition or application must have been “approvable” at the time of filing or the labor certificate application must have been properly filed in order to result in grandfathering of the alien. It is not relevant to grandfathering if a change of fact or law subsequent to the filing renders the petition or application subsequently non-approvable.
- The issue of whether an alien is subject to the two-year home residence requirement is an issue of law to be determined by the Immigration and Naturalization Service.
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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.