Better days ahead for aliens? (Part 1)

Recently, there has been a series of developments in U.S. immigration laws, policies, and procedures which should provide a promise of better days for aliens seeking to live the "American Dream". Recent court decisions, government policy memoranda, and legislative bills are easing the pressure on aliens who are out of status.

By way of background, the Illegal Immigration Reform and Immigrant Responsibility Act (IIRIRA) of 1996 marked a dark milestone for aliens. It was one of the harshest laws ever passed on immigration. That law eliminated many forms of relief and benefits that were previously available to aliens, with some being applied retroactively. IIRIRA also imposed harsh new requirements, making it more difficult or sometimes impossible for aliens to either come to America and/or to legalize their status. The mood of the country in 1996 was very much anti-immigrant, and very few politicians were willing to speak out, or risk their political career by taking a pro-immigration stand.

Over the years, the pendulum is slowly, but surely, swinging towards a "kinder and gentler" approach to aliens and immigration. There are discussions of an amnesty and amendments to IIRIRA, that would have been unheard of only a few years ago. Here are some highlights of the many positive developments in immigration:

1. Extension of Section 245(i). Congress passed the LIFE Act in December 2000, extending Section 245(i) to April 30, 2001. Section 245(i) is a law that would allow people who are out of status, jumped ship, worked without authorization, overstayed, etc., to preserve their future ability to adjust status (be interviewed for a greencard in the U.S.), so long as they have a "properly filed" family petition or Labor Certification Application before the expiration of the law. Section 245(i) was of tremendous benefit to tens of thousands of illegal aliens, who would have been required to return to their home country for their visas, where they faced the possibility of being barred from returning to the U.S. for at least 10 years.

2. Congress is very close to passing another extension of Section 245(i). Everyone is watching, virtually on a daily basis, concerning developments on the passage of a further extension of Section 245(i). There are several versions of a new Section 245(i) going through the various Senate and Congressional Committees, and everyone is eagerly awaiting the passage of this extension.

3. Grandfathering of Section 245(i) eligibility. INS issued several memos stating that not only is a person eligible for adjustment of status on the basis of a family petition or Labor Certification filed before the expiration of Section 245(i), but the person could transfer their Section 245(i) eligibility onto a new or different petition or Labor Certification Application filed after the expiration of Section 245(i). In addition, not only is the alien under petition eligible for Section 245(i), but also the alienís spouse and minor children.

4. INS should not use Section 245(i) filings to find and remove/deport aliens. In an April 27, 2001 memo, INS Headquarters instructed all of its field offices that they "shall not initiate removal proceedings against an alien who is eligible for adjustment under Section 245(i) if such action is based solely on the filing of an immigrant petition, labor certification application, or application for adjustment of status filed by, or on behalf of, that alien, on or after the date of this memorandum seeking to legalize the alienís status under Section 245(i)". In other words, INS is not supposed to use a Section 245(i) filing to find and/or deport aliens.

As you can see, there is a positive shift in law, cases, and attitude towards aliens. We hope that this continues, so that hardworking aliens will finally be able to share in the American Dream. In a future article, I will discuss more positive developments.

Michael J. Gurfinkel has been a licensed attorney in California for 21 years. He has always excelled in school: Valedictorian in High School; Cum Laude at UCLA; and Law Degree Honors and academic scholar at Loyola Law School, which is one of the top law schools in California. He is also an active member of the State Bar of California, the American Immigration Lawyers Association, and the Immigration Section of the Los Angeles County Bar Association. All immigration services are provided by an active member of the State Bar of California and/or by a person under the supervision of an active member of the State Bar.

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(This is for informational purposes only, and reflects the firm’s opinions and views on general issues. Each case is different and results may depend on the facts of a particular case. No prediction, warranty or guarantee can be made about the results of any case. Should you need or want legal advice, you should consult with and retain counsel of your own choice.)