IIRIRA

Surcharge Increased by Congress

Section 376(a) of the IIRIRA increased the amount of the additional sum for applicants seeking the benefits of section 245(i) of the Act from five times the fee required for processing of applications under this section ($ 650) to $ 1,000. The regulations are, therefore, amended to reflect the change in the additional fee.

The new 245(i) surcharge in the amount of $ 1,000 applies to all applications properly filed with this Service on or after the end of the 90-day period beginning on the date of enactment. The section 245(i) fee increase, therefore, became effective on December 29, 1996, for applications for adjustment of status under section 245(i) of the Act which were properly filed in accordance with 8 CFR 103.2(a) on or after that date. Under new 8 CFR 245.10(f), if at any time during the pendency of the adjustment appl ication, the application is determined to be subject to the section 245(i) surcharge, and the application is not accompanied by the required amount (i.e., base fee of $ 130 plus $1,000 surcharge), the Service will afford the alien an opportunity to amend the application in accordance with 8 CFR 245.10(d). If the alien elects to amend such an application, he or she will be credited for the $ 130 base filing fee that was submitted with the initial adjustment application and, therefore, will be required to sub mit only the $ 1,000 surcharge amount and Supplement A to Form I-485.

Section 245(c)(6) of the Act

Under the IIRIRA, Congress amended section 245(c)(6) of the Act by changing the reference to section 241(a)(4)(B) to section 237(a)(4)(B) of the Act. Section 237(a)(4)(B) of the Act renders any alien who has engaged, is engaged, or at any time after admission engages in any terrorist activity, as defined in section 212(a)(3)(B)(iii) of the Act, "deportable." Under section 245(c)(6), persons who are deportable under section 237(a)(4)(B) of the Act are ineligible to adjust status under section 245(a) of the Act. This second interim regulation reflects the position of the Service that any person who is deportable under section 237(a)(4)(B) of the Act is also ineligible to adjust status under section 245(i) of the Act.

New Section 245(c)(7) of the Act

Section 375 of the IIRIRA, which took effect on September 30, 1996, amended section 245(c) of the Act by adding two new groups of aliens to the list of those who are ineligible to adjust status under section 245(a) of the Act. The first group, described in new section 245(c)(7) of the Act, consists of any alien beneficiary of an employment-based immigrant visa petition who is not in a lawful nonimmigrant status at the time she or he applies for adjustment of status. In enacting new section 245(c)(7) of the Act, Congress changed preexisting law by rendering aliens who are legally permitted to remain in the United States, such as parolees, but who are not among the classes of nonimmigrants defined in section 101(a)(15) or other provisions of the Act, ineligible to adjust status under section 245(a) of the Act on the basis of an approved employment-based immigrant petition. This second interim rule amends 8 CFR 245.1(b) to add such aliens to the group of people currently ineligible for adjustment of status. It s hould be noted, however, that the section 245(c)(7) bar to adjustment does not apply to aliens who were in a lawful nonimmigrant status at the time they applied for adjustment of status, subsequently departed from the United States, and then reentered this country pursuant to an approved advance parole.

New Section 245(c)(8) of the Act

Section 375 of the IIRIRA also added a new section 245(c)(8) to the Act, which renders "any alien who was employed while the alien was an unauthorized alien as defined in section 274A(h)(3) [of the Act] or who has otherwise violated the terms of a nonimmigrant visa" ineligible to adjust status pursuant to section 245(a) of the Act. With respect to the employment of an alien at a particular time, section 274A(h)(3) of the Act defines the term "unauthorized alien" as an alien who is not either an alien lawful ly admitted for permanent residence or authorized to be so employed under the Act or by the Attorney General.

Except as noted below with regard to immediate relatives and certain special immigrants, the Service interprets new section 245(c)(8) of the Act as rendering an alien ineligible to adjust status to permanent resident under section 245(a) of the Act if she or he at any time engaged in unauthorized employment or violated nonimmigrant status while physically present in the United States. This second interim rule amends 8 CFR 245.1(b) accordingly by adding any alien who has violated the terms of a nonimmigrant visa to the list of persons currently ineligible to adjust status under section 245(a) of the Act. In addition, since the statute does not state that the violation of the terms of a nonimmigrant visa or the unauthorized employment must have occurred during a particular time period, this rule similarly places no time restrictions on when such a violation must have occurred. For this reason, this rule provides that any such violation of the terms of a nonimmigrant visa or unauthorized employment, either befo re or after the filing of Form I-485, will render an alien ineligible to adjust status under section 245(a) of the Act. Thus, as described below, under new section 245(c)(8) of the Act, an alien seeking employment during the pendency of his or her adjustment application must fully comply with the requirements of section 274A of the Act and 8 CFR part 274a.

Clarification of the Term "Otherwise Violated the Terms of a Nonimmigrant Visa" in New Section 245(c)(8) of the Act

For purposes of section 245(c)(8) of the Act, an alien will not be deemed to have "otherwise violated the terms of a nonimmigrant visa" merely by filing an application for adjustment of status, provided that such filing was in accordance with 8 CFR 103.2(a) and occurred prior to the expiration of the alien's nonimmigrant status. Further, for purposes of section 245(c)(8) of the Act, an alien will not be deemed to have "otherwise violated the terms of a nonimmigrant visa" if: (a) The alien's failure to main tain status was through no fault of his or her own or for technical reasons, as defined in 8 CFR 245.1(d)(2); (b) the alien was granted a change of nonimmigrant status pursuant to 8 CFR 248.1(b); (c) the alien was granted an extension of nonimmigrant stay pursuant to current Operations Instructions 214.1 or any previous analogous Operations Instructions; (d) the alien was granted an extension of nonimmigrant stay based on a timely filed extension application which the Service approved after the alien's auth orized nonimmigrant period of stay expired; or (e) the alien was granted reinstatement to student status pursuant to 8 CFR 214.2(f)(16) on the basis of circumstances beyond the student's control.

Clarification of the Term "Unauthorized Alien" in New Section

245(c)(8) of the Act

For purposes of section 245(c)(8) of the Act, an alien will not be deemed to be an "authorized alien" as defined in section 274A(h)(3) of the Act while his or her properly filed Form I-485 application is pending final adjudication, if the alien has otherwise obtained permission from the Service to engage in employment, or if the alien: (a) Has not previously engaged in unauthorized employment at any time; (b) was authorized, at the time of filing the adjustment application,

to be employed by his or her current employer pursuant to a nonimmigrant classification permitting such employment; and (c) would otherwise have been authorized to continue employment had he or she not filed the application for adjustment of status. In all other cases, including those in which the alien's previously granted employment authorization expires during the pendency of the adjustment application, the adjustment applicant must await issuance of an employment authorization document ("EAD") from the Service before he or she may lawfully engage in employment. For this reason, adjustment applicants are strongly urged to file a Form I-765 application on the basis of 8 CFR 274a.12(c)(9) concurrently or as soon as possible after filing the Form I-485 to avoid a lapse of employment authorization. Further, in all cases, if the district director or service center director denies the alien's application for adjustment of status, any employment authorization granted to the alien on the basis of the adjustment ap plication will be subject to termination pursuant to 8 CFR 274a.14(b). Finally, as this second interim rule is limited to defining who is an "unauthorized alien" for purposes of new section 245(c)(8) of the Act, an alien who meets the above requirements must, like all other adjustment applicants, obtain advance parole in order to travel outside of the United States during the pendency of his or her adjustment application.

Immediate Relatives and Certain Special Immigrants Are Exempt From the Bar to Adjustment Under Section 245(c)(8) of the Act

By its terms, new section 245(c)(8) of the Act applies to "any alien" and does not exempt any individual or group of individuals from the bar to adjustment under section 245(a) of the Act. This provision, however, must be harmonized with section 245(c)(2) of the Act, which also addresses unauthorized employment and failure to maintain lawful status, but which exempts from its bar to adjustment immediate relatives, as defined in section 201(b) of the Act, or special immigrants, as defined in section 101(a)(2 7) (H), (I), (J), or (K) of the Act. Despite the reference to "all aliens" in new section 245(c)(8) of the Act, it is the position of the Service that the language of this new section does not supersede the more specific language of section 245(c)(2) of the Act. See 2B Sutherland Stat. Const. section 51.02 at p. 121 (where a conflict exists the more specific statute controls over the more general one). Under this second interim rule, therefore, immediate relatives as defined in section 201(b) or special imm igrants described in section 101(a)(27) (H), (I), (J), or (K) of the Act who have at any time engaged in unauthorized employment or otherwise violated the terms of a nonimmigrant status continue to be eligible to adjust status under,section 245(a) of the Act because of the explicit language to this effect in section 245(c)(2) of the Act. As is currently the case, such individuals are not required to pay the additional sum required for filing an adjustment application pursuant to section 245(i) of the Act. S ee 8 CFR 245.1(b). These persons are still required, however, to pay the base filing fee required of other adjustment applicants under section 245(a) of the Act. See 8 CFR part 103.7(b)(1).

Effect of New Ground of Inadmissibility 212(a)(6) on Section 245(i) of

the Act

The IIRIRA added several new grounds of inadmissibility, including a new section 212(a)(6) of the Act, which became effective on April 1, 1997. Under new section 212(a)(6)(A) of the Act, with certain exceptions specified therein, aliens who are "present in the United States without being admitted or paroled," will be inadmissible to the United States. All inadmissibility grounds are subject, however, to the general language in the first clause of section 212(a) of the Act: "[e]xcept as otherwise provided in this Act." For the following reasons, it is the position of the Service that, despite the enactment of this new ground of inadmissibility, aliens who are physically present in the United States after having entered without inspection will continue to be eligible to apply for adjustment of status under section 245(i) of the Act through the September 30, 1997, sunset date for section 245(i). In making this determination, we note, as a preliminary matter, that the first clause of section 212(a) of the Act, un like certain other sections of the Act, contains no requirement that another section of the Act specifically provide that an entrant without inspection is exempt from the new ground of inadmissibility. By contrast, in enacting other sections of the Act, when Congress has intended such specificity, it has expressly imposed this requirement.See e.g., section 101(a)(38) of the Act ("except as otherwise specifically herein provided * * *"); section 245A(h)(1) of the Act ("[u]nless specifically provided by this section or other law"). In the absence of such a specificity requirement in the first clause of section 212(a) of the Act, the rules of statutory construction permit

us to conclude, if otherwise warranted, that Congress intended otherwise eligible applicants who had entered without inspection to be "admissible" for the limited purpose of adjusting status under section 245(i) of the Act, even in the absence of specific language in section 245(i) referring to section 212(a)(6)(A) of the Act.

The Service finds ample additional evidence of Congress' intent to permit entrants without inspection to continue to apply for adjustment of status under section 245(i) of the Act after April 1, 1997. First, under the plain language of section 245(i)(1)(A) of the Act, aliens who are physically present in the United States who entered without inspection are specifically permitted to apply for adjustment of status. Section 245(i)(2)(A), of the Act, however, requires that such aliens be "admissible" to the Uni ted States. To deem such entrants without inspection "inadmissible" would render section 245(i)(1)(A) of the Act effectively superfluous, since it would preclude nearly all entrants without inspection from ever obtaining approval of such applications. On a similar note, since an applicant for adjustment of status is assimilated to the position of an applicant for admission, such a person must be "admissible" both at the time of application and at the time of being granted adjustment of status. See 8 CFR 245 .10(a)(3) (alien "may apply" for adjustment under section 245(i) if not excludable); section 245(i)(2)(A) of the Act (alien must be "admissible" at time of adjustment). Since section 245(i)(1)(A) of the Act expressly permits entrants without inspection to apply for adjustment of status, Congress, in effect, has deemed such persons"admissible" for the single purpose of filing an adjustment application under section 245(i) of the Act. The Service does not believe that Congress, having thus invited such applic ations, intended to create the futile situation in which most entrants without inspection would be admissible solely for the purpose of filing an adjustment application, but would be precluded from ever being able to adjust status based on the same application. Finally, as a further indication of Congress' intent to preserve the status quo with respect to entrants without inspection, we note that Congress, in enacting the IIRIRA, amended other portions of section 245(i) of the Act but left standing 245(i)(1 )(A) of the Act, which specifically authorizes those who entered without inspection to apply for adjustment under the terms

of that subsection. See section 376 (a) and (b) of the IIRIRA.

General Effect of New Section 212(a)(9) of the Act on Adjustment of Status

This second interim regulation specifically provided that new section 212(a)(9) of the Act will not be a bar to adjustment of status for an alien who has not yet departed from the United States. This interpretation conforms to the plain language of the statue which requires that an alien must depart from the United States in order to become inadmissible under section 212(a)(9) of the Act. Such a person, however, if otherwise within the purview of section 212(a)(9) of the Act (for example, by virtue of havi ng accumulated the specified periods of unlawful presence), will be deemed inadmissible under that section of the Act for purposes of adjustment of status if he or she has departed from the United States and subsequently reentered the United States by any means.

Effect of New Section 212(a)(9)(B) of the Act on Adjustment of Status

With certain exceptions, effective April 1, 1997, under new section 212 (a)(9)(B) of the Act, any alien, with the exception of a lawful resident, who has been "unlawfully present" in this country (e.g., present beyond the period of stay authorized by the Attorney General or present without being admitted or paroled) for a period of more than 180 days but less than 1 year, has voluntarily departed from the United States, and again seeks admission to this country within 3 years from the date of departure, wil l be inadmissible to the United States. Similarly, an alien who has been unlawfully present in the United States for 1 year or more, departs from the United States, and again seeks admission to this country within 10 years of the date of such departure or removal, will be deemed inadmissible. In addition to the specific exceptions set forth under new section 212(a)(9)(B) of the Act, no period prior to April 1, 1997, may be counted toward the period of "unlawful presence." See section 301(b)(3) of the IIRIR A. Thus, the earliest possible date an alien could be deemed to be inadmissible under section 212(a)(9)(B) of the Act would be September 28, 1997. As noted above, otherwise admissible persons who have been "unlawfully present" for any period of time while in this country are generally ineligible to adjust their status under section 245(a) of the Act. Under section 245(i) of the Act, however, such persons, if admissible, are eligible to apply for adjustments of status upon payment, in most cases, of a substa ntial surcharge fee. The Service intends to address the issues relating to section 212(a)(9) of the Act in a separate proposed rulemaking.