Thursday, January 11, 2001
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Posted on: Thursday, January 11, 2001

Island Voices
Window is open briefly for aliens

By David P. McCauley
Full-time immigration law attorney with the Honolulu law firm of Damon Key Leong Kupchak Hastert

As a result of legislation signed by President Clinton on Dec. 21, 2000, certain eligible people, even if they are unlawfully in the United States, will be able to become permanent residents without leaving the country. But they have to act by April 30.

The new law, the Legal Immigration and Family Equity Act, or "LIFE," does not offer a blanket amnesty. Instead, it temporarily restores Section 245(i) of the Immigration and Nationality Act, a section that was phased out as of Jan. 14, 1998. Section 245(i) allows eligible people who are physically present in the United States but not in proper immigration status to "adjust" their status, i.e., to apply for lawful permanent resident or "green card" status, upon payment of a fee of $1,000.

People who already qualified as of Jan. 14, 1998, were "grandfathered" to receive the benefits of Section 245(i). However, many missed the Jan. 14 deadline and others since have fallen out of status.

Without 245(i), people who entered the United States illegally, overstayed after being admitted, worked without authorization, or otherwise violated the terms of their status could not become permanent residents while in the United States. Instead, they would have to return to their home countries and there complete the process for an immigrant visa at a U.S. consulate.

However, under changes in the law made in 1996, if people have been out of status in the United States for more than 180 days, they would be barred from re-entering the United States for at least three years, and perhaps as long as 10 years.

Section 245(i) allows these people to remain in the United States to obtain permanent residence through adjustment of status, and thus never trigger these re-entry bars. (Once permanent residence is obtained, these bars no longer apply.) It is essential that people subject to the bars not leave the United States until they become permanent residents.

The restored Section 245(i) is only available to people who are eligible for permanent residence based on a family relationship or a job offer. U.S. citizens and lawful permanent residents can file visa petitions for their family members, and businesses can file labor certification applications for prospective employees.

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