DEVELOPMENTS IN U.S. IMMIGRATION LAW

LIFE Act: last chance for permanent residency?

by Andre Michniak

On December 21, 2000, President Bill Clinton signed The Legal Immigration and Family Equity Act of 2000 (LIFE Act) into law. A main provision of this law, Section 245(i) of the Immigration and Nationality Act, was extended from January 14, 1998, until April 30, 2001. Section 245(i) allows certain eligible people to become permanent residents without leaving the United States, whereas previously they would have to file the appropriate paperwork with the U.S. Consulate in their home countries.

Eligible individuals have until April 30, 2001 to file an immigrant visa petition (an I-130; I-140 or I-360) with the Immigration and Naturalization Service (INS), or a labor certification application with the Department of Labor (DOL) in order to take advantage of this provision.

The LIFE Act added a new "physical presence" requirement: People who file a petition or labor certification after January 14, 1998, but before April 30, 2001 must prove that they were in the United States on December 21, 2000 - the date this measure became law - in order to be eligible to use Section 245(i).

Filing an immigrant visa petition or labor certification application is the first step in a three-step process. The third step is acquiring permanent residency (the green card) by filing an Adjustment of Status Application (Form I-485). Even if a person does not apply to adjust status until after April 30, 2001, as long as the petition or labor certification is filed before that date, if he/she is qualified, their eligibility will not expire.

Q: Why is this new Section 245(i) needed?

A: Because Congress phased out the original Section 245(i) on January 14, 1998. People who already qualified as of January 14, 1998, were "grandfathered" to receive the benefits of Section 245(i). However, many qualified people missed the January 14 deadline and others since have fallen out of legal status. The extension of Section 245(i) through April 30, 2001, provides a four-month "window of opportunity" for people to protect their ability to adjust their status in this country.

Q: Who is eligible to qualify for the new Section 245(i)?

A: A person who is eligible for permanent residency based on a family relationship or job offer and wishes to adjust status to that of a permanent resident without leaving the United States could benefit from the new Section 245(i). Most people who entered the United States without inspection, overstayed an admission, acted in violation of the terms of their status, worked without authorization, entered as crewmen or were admitted in transit without a visa, are considered out of status and would be unable to complete the process to become a permanent U.S. resident without Section 245(i).

Q: Why is unlawful status of concern to potential immigrants, and how can Section 245(i) help them?

A: The Immigration Act of 1996 introduced the so-called three and 10-year bars to admissibility for those individuals who had been in unlawful status in the United States for more than 180 days. Without Section 245(i), out-of-status people needed to return to their home countries and there complete the process for an immigrant visa at a U.S. Consulate. However, if people have been out of status in the United States for more than 180 days, they will be barred from re-entering this country for at least three years, and perhaps as long as 10 years. Under Section 245(i), an eligible individual can remain in the U.S. to obtain permanent residency through adjustment of status, and thus never trigger these entry bars. Thus, it is particularly important that people subject to the bars not leave the U.S. until they become permanent residents.

Q: How does a person take advantage of the new Section 245 (i) provision of the LIFE Act?

A: To take advantage of this provision, a relative must submit a visa petition to the INS on behalf of the person seeking Section 245(i) benefits. The U.S. citizen or legal permanent resident who is sponsoring the eligible person must file (and sign) the petition. In addition, an employer can submit a labor certification to the DOL on behalf of the person seeking Section 245(i) relief. Both petitions and applications must be submitted on or before April 30, 2001. The INS or DOL does not have to approve the petition or application by that date. It just needs to be filed by April 30, 2001.

Legal permanent residents can petition for their spouses and unmarried sons and daughters (of any age). U.S. citizens can petition for their spouses, married and unmarried sons and daughters of any age, parents, and brothers and sisters. It is important to know that abused immigrant spouses can submit petitions for themselves and do not need a petitioner.

Aside from the restored Section 245(i) provision of the LIFE Act, immigration law has basically not changed. Similarly, various bars to permanent residence remain in place. Therefore, Section 245(i), by itself, will not cure disqualifying factors, such as a criminal record, use of fraudulent documents or material misrepresentations. Furthermore, Section 245(i) does not grant work authorization, protection from deportation or travel permission.

In addition to restoring Section 245(i), the LIFE Act created a new temporary visa for spouses and minor children of legal permanent residents awaiting immigrant visas. In order to address the severe backlogs on the availability of visas for families, the LIFE Act provides a remedy for the spouses and minor children of permanent residents.

Under current law, because these individuals are intending immigrants, there is no way for them to legally come to the United States, even for a short visit. By creating a new "V" visa, the law grants some family members a legal status and work authorization in the United States. In order to qualify for a new "V" visa, the spouse or child must meet the following criteria: a green card petition was filed for them on or before December 21, 2000, and they must have been waiting at least three years.

The LIFE Act also creates a new temporary status for spouses of U.S. citizens awaiting an immigrant visa. For much the same reason that led to the creation of the new "V" visa, the LIFE Act creates a remedy for the spouses of U.S. citizens who are outside of the United States and waiting for the approval of an immigrant petition.

The law expands the "K" visa, which currently only allows fiancees of U.S. citizens to enter the United States for the purpose of getting married, to include its use by spouses of U.S. citizens, who are already married and are waiting outside of the United States for the approval of their immigrant visa petition. Any minor children who are accompanying the spouse, can be included in the petition. In order to qualify, the spouse and minor children must meet the following criteria: an immigrant visa petition must have been previously filed (the law requires that the U.S. citizen file an immigrant petition in the United States before a visa can be issued to the spouse abroad; the "K" visa will allow the spouse abroad to enter the United States and await the approval of the petition); and the recipient of the visa must be outside of the United States. Unlike the new "V" visa, which applies only to petitions filed no later than December 21, 2000 (the date the LIFE Act became law), the expanded "K" visa is available to current and future applicants.

While the LIFE Act has been well-publicized in the media, including the ethnic media, much confusion still exists and many people who need to take advantage of this law remain misinformed. This confusion is partly the result of inaccurate information provided by some non-lawyer "immigration consultants" and unqualified social service and ethnic-run information bureaus. It is also due to a simple misunderstanding of the law on the part of potential immigrants. There is no question that immigration law can be complex and often misinterpreted. This is understandable and is the reason that individuals seek legal counsel. Of greater concern, however, to many competent and honest immigration attorneys is that the information provided by unqualified agencies and groups is incorrect and, sometimes, even intentionally distorted.

The greatest problem now involves the proper filing and processing of labor certification applications in conjunction with the provisions of Section 245(i).

Many individuals who do not have U.S. or permanent resident relatives who can file for them are trying to take advantage of Section 245(i) by filing labor certification applications through their employers or future employers. Labor certification is the initial step in the process by which an individual can obtain permanent residency through an offer of employment from a corporation or unincorporated business entity. It requires that the individual have an offer of employment in a position for which there is a shortage of U.S. workers. It also requires that the sponsored individual have the necessary training or experience for the job offered at the time the labor certification application is filed. Training or experience gained with the sponsoring employer cannot be used, it must have been obtained from work for a prior employer.

The offer of employment must include payment of wages at the same level that U.S. workers are paid for a given occupation. It does not require that the individual work for the employer during the application process. The law only requires that the employer hire the individual after he or she obtains permanent residency. Whether or not an offered position is a shortage occupation is determined by the Department of Labor through nationwide studies, analysis of the job market and through the employer's own evidence that the job has been offered to U.S. workers, but has not been filled.

The employer's evidence of the lack of qualified U.S. workers is demonstrated through a process called "recruitment." The employer is required to show that for a period of time before the labor certification is filed, usually six months, the job opening was made known to U.S. workers through a variety of means: newspaper advertisements, internal job postings, website postings, and requests to employment agencies or "head hunters." The employer is not required to show that there are no qualified U.S. workers in the entire country, but only in the region or area where the job offer exists.

Besides certifying that the individual will be hired at the prevailing wage after he or she obtains permanent resident status, the sponsoring employer must also provide proof that the business has the ability to pay the sponsored individual's salary. This documentation, through a tax return, is not provided to the Department of Labor, but to the INS after the labor certification is approved.

Normally, the INS looks to see whether or not the employer's net profit is equal to or greater than the sponsored individual's yearly salary. If it is not, there are other ways that the employer can prove his ability to pay the required wage. However, there are limitations and the presentation of this evidence is critical and must be carefully reviewed before the labor certification is even filed.

There are very few things as disconcerting in this process as having the INS deny the case based on the employer's inability to pay the required wage. At that point, the sponsored individual has spent time and money and has had the labor certification approved, but then suddenly has to face the reality that the case is over. Of greater significance is that a denial by the INS cancels the sponsored individual's "grandfathered" benefits under Section 245(i) because the labor certification was not "approvable" when initially filed. Unfortunately, many individuals who are trying to take advantage of the benefits of the LIFE Act are not properly informed about this requirement.

An important additional benefit of Section 245(i) is that the filing of a labor certification application (or a visa petition) before April 30, 2001, provides the applicant with the legal ability to file other applications in the future. Therefore, even if the case is not successful because the employer could not show a shortage of U.S. workers, the applicant can try again in the future, after April 30, 2001, with a different employer or through a family petition. This is the "coverage" that Section 245(i) provides. It may not lead to permanent residency on the first try, but gives the applicant the opportunity to try again later.

Q: What kind of jobs are best suited for labor certification?

A: The simple answer is: any job where the employer can demonstrate that there is a shortage of U.S. workers. In reality, however, certain occupations have been classified as bona fide shortage occupations by the Department of Labor. Occupations such as automobile mechanic, computer professional, skilled construction worker, ethnic specialty cook, landscape gardener, supervisor of cleaning services, travel agency manager, pharmacist, secretary, tailor and all professions with foreign language requirements are considered shortage occupations. Labor certification and permanent residency based on these jobs are most often approved by the Department of Labor.

On the other hand, there are many occupations for which there is no shortage of U.S. workers. These are primarily positions that require little or no training, preparation or work experience: assemblers, cashiers, truck drivers, packers, guards, waiters, taxi drivers, etc. The filing of a labor certification for these positions leads to a denial by the Department of Labor. Such a result seriously prejudices the sponsored individual because the case is denied and the "grandfathering" provisions under the law do not apply. Such individuals fail to obtain permanent resident status and are not even covered by Section 245(i). The likely result is that such an individual will never obtain permanent residency in the United States. Competent and professional assistance can prevent this disastrous result.

Q: Assuming that the labor certification application is approved and the INS approves step two (the Immigrant Visa Petition), how long must a person wait to obtain his or her permanent residence?

A: The processing of employment-based petitions varies among the different Department of Labor regional offices. A case under the jurisdiction of Region III, based in Philadelphia, may take to two to two and a half years. The same type of employment-based case under the jurisdiction of Region II in New York may take four to five years. At a minimum, the job offer should be for an occupation that requires at least two years of prior experience or training. These positions are determined to be skilled occupations. Unskilled jobs require a much longer waiting time before permanent residency can be obtained; these should be avoided, if possible. Again, proper review and professional counseling can assist individuals in making the proper choices before starting an employment-based case.

The LIFE Act of 2000 is an important law that may very well provide a great many individuals with a final chance to obtain permanent resident status in the United States. With so much at stake, applicants should make informed decisions based on competent and professional advice from attorneys well-versed in immigration law. The road to permanent residency is a difficult one, but armed with accurate and genuine information, an immigration applicant can legalize his or her status, and start a new life in this nation of immigrants.

Andre Michniak, Esq. is the president and founder of The Law Offices of Andre Michniak, P.C., which maintains offices in Philadelphia and Reading, Pa. Members of this firm represent individuals and corporations throughout the United States, as well as overseas. The firm handles immigration, personal injury and criminal matters.

Copyright © The Ukrainian Weekly, March 4, 2001, No. 9, Vol. LXIX

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