When Illegal Aliens Eligible to Adjust Their Status
With an estimated twelve to twenty million immigrants without legal status present in the US, knowing what the immigration law is and how it affects illegal immigrants is of great importance.
The Illegal Immigration Reform and Immigrant Responsibility Act of 1996 (IIRAIRA) probably has had the greatest impact on illegal immigrants today. Of notable importance, IIRIRA established the rules affecting eligibility for persons in the US to obtain a green card by establishing a difference between persons who entered legally and persons who entered illegally by replacing the term “entry” with the term “lawful admission” in the law.
Furthermore, this law established bars of inadmissibility to persons who are present in the US illegally. For persons in the US who have been present illegally for a period of more than 180 days, but less than year, there is a three-year bar to their reentry. For persons who have been physically present in the US for more than one year, there is a ten-year bar to their reentry. If a person leaves the US after being illegally present for certain periods of time, they will not be able to return to the US for significant period of time.
Consequently, IIRAIRA does not allow a person who is illegally present in the US to adjust status (apply for a green card) here, unless he or she entered legally and is the immediate relative of a US citizen. An immediate relative is a parent, spouse or child under the age of 21. If filing for a green card under another basis, except as a battered spouse, the applicant must return to the US Embassy of the home country for an immigrant visa appointment. However, because of the three- and ten-year bars, an applicant would be barred from returning to the US for a significant period of time, if ever, making a trip abroad for an immigrant visa appointment futile.
In order to allow illegal immigrants to adjust status in the US, on December 21, 2000, President Clinton signed the Legal Immigration Family Equity Act (LIFE) into law, extending Section 245(i) of the INA. The LIFE Act provided that if a visa petition or alien labor certification was filed on behalf of a beneficiary on or before April 30, 2001 and that the beneficiary was physically present in the US on December 21, 2000, the beneficiary could pay a penalty fee of $1,000.00 and adjust status in the US rather than returning to the US Embassy of the home country for an immigrant visa appointment, thereby avoiding the three- and ten-year bars.
If, for example, a person entered the US illegally, was not physically present in the US on December 21, 2000, or did not have a visa petition filed on or before April 30, 2001, he or she is ineligible to file for your green card unless the law changes.
However, if a person entered the US with a valid visa and overstayed his or her visa, whether it is five days or five years or fifty years, and that person is the immediate relative of a US citizen, such as the parent of a US citizen over 21, spouse of a US citizen, or child under 21 of a US citizen, then she can immediately file for adjustment of status. The LIFE Act had no bearing on eligibility to file for a green card.
The LIFE Act had the greatest impact on persons who entered the US without inspection (illegally) or persons who overstayed their visas and are not immediate relatives of a US citizen. Take, for example, if a person had a US citizen brother or sister file a petition on his or her behalf in January 2001 and he or she can prove he was physically present in the US on December 21, 2000, then once the priority date on the visa petition is reached, he or she would be eligible to file adjustment of status. The same holds if the employer sponsored that person and filed an alien labor certification on or before April 30, 2001.
It is very important to note that if a person entered illegally and is the immediate relative of a US citizen, he or she would still have qualified under the LIFE Act to adjust status in the US or wait for the law to change before adjusting status.