Act 245A(d)

(d) Waiver of Numerical Limitations and Certain Grounds for Exclusion.-

(1) Numerical limitations do not apply.-The numerical limitations of sections 201 and 202 shall not apply to the adjustment of aliens to lawful permanent resident status under this section.

(2) Waiver of grounds for exclusion.-In the determination of an alien's admissibility under subsections (a)(4)(A), (b)(1)(C)(i), and (b)(2)(B)-

(A) Grounds of exclusion not applicable.-The provisions of paragraphs (5) and (7)(A) of section 212(a) shall not apply.

(B) Waiver of other grounds.-

(i) In general.-Except as provided in clause (ii), the Attorney General may waive any other provision of section 212(a) in the case of individual aliens for humanitarian purposes, to assure family unity, or when it is otherwise in the public interest.

(ii) Grounds that may not be waived.-The following provisions of section 212(a) may not be waived by the Attorney General under clause (i):

(I) Paragraphs (2)(A) and (2)(B) (relating to criminals).

(II) Paragraph (2)(C) (relating to drug offenses), except for so much of such paragraph as relates to a single offense of simple possession of 30 grams or less of marihuana.

(III) Paragraph (3) (relating to security and related grounds).

(IV) Paragraph (4) (relating to aliens likely to become public charges) insofar as it relates to an application for adjustment to permanent residence.

Subclause (IV) (prohibiting the waiver of section 212(a)(4)) shall not apply to an alien who is or was an aged, blind, or disabled individual (as defined in section 1614(a)(1) of the Social Security Act).

(iii) Special rule for determination of public charge.-An alien is not ineligible for adjustment of status under this section due to being inadmissible under section 212(a)(4) if the alien demonstrates a history of employment in the United States evidencing self-support without receipt of public cash assistance.

(C) Medical examination.-The alien shall be required, at the alien's expense, to undergo such a medical examination (including a determination of immunization status) as is appropriate and conforms to generally accepted professional standards of medical practice.

(e) Temporary Stay of Deportation and Work Authorization for Certain Applicants.-

(1) Before application period.-The Attorney General shall provide that in the case of an alien who is apprehended before the beginning of the application period described in subsection (a)(1)(A) and who can establish a prima facie case of eligibility to have his status adjusted under subsection (a) (but for the fact that he may not apply for such adjustment until the beginning of such period), until the alien has had the opportunity during the first 30 days of the application period to complete the filing of an application for adjustment, the alien-

(A) may not be deported, and

(B) shall be granted authorization to engage in employment in the United States and be provided an "employment authorized" endorsement or other appropriate work permit.

(2) During application period.-The Attorney General shall provide that in the case of an alien who presents a prima facie application for adjustment of status under subsection (a) during the application period, and until a final determination on the application has been made in accordance with this section, the alien-

(A) may not be deported, and

(B) shall be granted authorization to engage in employment in the United States and be provided an "employment authorized" endorsement or other appropriate work permit.

(f) Administrative and Judicial Review.-

(1) Administrative and judicial review.-There shall be no administrative or judicial review of a determination respecting an application for adjustment of status under this section except in accordance with this subsection.

(2) No review for late filings.-No denial of adjustment of status under this section based on a late filing of an application for such adjustment may be reviewed by a court of the United States or of any State or reviewed in any administrative proceeding of the United States Government.

(3) Administrative review.-

(A) Single level of administrative appellate review.- The Attorney General shall establish an appellate authority to provide for a single level of administrative appellate review of a determination described in paragraph (1).

(B) Standard for review.-Such administrative appellate review shall be based solely upon the administrative record established at the time of the determination on the application and upon such additional or newly discovered evidence as may not have been available at the time of the determination.

(4) Judicial review.-

(A) Limitation to review of deportation.-There shall be judicial review of such a denial only in the judicial review of an order of deportation under section 106 (as in effect before October 1, 1996). 2/

(B) Standard for judicial review.-Such judicial review shall be based solely upon the administrative record established at the time of the review by the appellate authority and the findings of fact and determinations contained in such record shall be conclusive unless the applicant can establish abuse of discretion or that the findings are directly contrary to clear and convincing facts contained in the record considered as a whole.

(C) 3/ Jurisdiction of courts.-Notwithstanding any other provision of law, no court shall have jurisdiction of any cause of action or claim by or on behalf of any person asserting an interest under this section unless such person in fact filed an application under this section within the period specified by subsection (a)(1), or attempted to file a complete application and application fee with an authorized legalization officer of the Service but had the application and fee refused by that officer.

(g) Implementation of section.-

(1) Regulations.-The Attorney General, after consultation with the Committees on the Judiciary of the House of Representatives and of the Senate, shall prescribe-

(A) regulations establishing a definition of the term "resided continuously", as used in this section, and the evidence needed to establish that an alien has resided continuously in the United States for purposes of this section, and

(B) such other regulations as may be necessary to carry out this section.

(2) Considerations.-In prescribing regulations described in paragraph (1)(A)-

(A) Periods of continuous residence.-The Attorney General shall specify individual periods, and aggregate periods, of absence from the United States which will be considered to break a period of continuous residence in the United States and shall take into account absences due merely to brief and casual trips abroad.

(B) Absences caused by deportation or advanced parole.- The Attorney General shall provide that-

(i) an alien shall not be considered to have resided continuously in the United States, if, during any period for which continuous residence is required, the alien was outside the United States as a result of a departure under an order of deportation, and

(ii) any period of time during which an alien is outside the United States pursuant to the advance parole procedures of the Service shall not be considered as part of the period of time during which an alien is outside the United States for purposes of this section.

(C) Waivers of certain absences.-The Attorney General may provide for a waiver, in the discretion of the Attorney General, of the periods specified under subparagraph (A) in the case of an absence from the United States due merely to a brief temporary trip abroad required by emergency or extenuating circumstances outside the control of the alien.

(D) Use of certain documentation.-The Attorney General shall require that-

(i) continuous residence and physical presence in the United States must be established through documents, together with independent corroboration of the information contained in such documents, and

(ii) the documents provided under clause (i) be employment-related if employment- related documents with respect to the alien are available to the applicant. (3) Interim final regulations.-Regulations prescribed under this section may be prescribed to take effect on an interim final basis if the Attorney General determines that this is necessary in order to implement this section in a timely manner.

(h) Temporary Disqualification of Newly Legalized Aliens from Receiving Certain Public Welfare Assistance.-

(1) In general.-During the five-year period beginning on the date an alien was granted lawful temporary resident status under subsection (a), and notwithstanding any other provision of law-

(A) except as provided in paragraphs (2) and (3), the alien is not eligible for-

(i) any program of financial assistance furnished under Federal law (whether through grant, loan, guarantee, or otherwise) on the basis of financial need, as such programs are identified by the Attorney General in consultation with other appropriate heads of the various departments and agencies of Government (but in any event including the program of aid to families with dependent children under part A of title IV of the Social Security Act),

(ii) medical assistance under a State plan approved under title XIX of the Social Security Act, and

(iii) assistance under the Food and Nutrition Act of 2008 4/ ; and

(B) a State or political subdivision therein may, to the extent consistent with subparagraph (A) and paragraphs (2) and (3), provide that the alien is not eligible for the programs of financial assistance or for medical assistance described in subparagraph (A)(ii) furnished under the law of that State or political subdivision. Unless otherwise specifically provided by this section or other law, an alien in temporary lawful residence status granted under subsection (a) shall not be considered (for purposes of any law of a State or political subdivision providing for a program of financial assistance) to be permanently residing in the United States under color of law.

(2) Exceptions.-Paragraph (1) shall not apply-

(A) to a Cuban and Haitian entrant (as defined in paragraph (1) or (2)(A) of section 501(e) of Public Law 96-422, as in effect on April 1, 1983), or

(B) in the case of assistance (other than aid to families with dependent children) which is furnished to an alien who is an aged, blind, or disabled individual (as defined in section 1614(a)(1) of the Social Security Act).

(3) Restricted Medicaid benefits.-

(A) Clarification of entitlement.-Subject to the restrictions under subparagraph (B), for the purpose of providing aliens with eligibility to receive medical assistance-

(i) paragraph (1) shall not apply,

(ii) aliens who would be eligible for medical assistance but for the provisions of paragraph (1) shall be deemed, for purposes of title XIX of the Social Security Act, to be so eligible, and

(iii) aliens lawfully admitted for temporary residence under this section, such status not having changed, shall be considered to be permanently residing in the United States under color of law.

(B) Restriction of benefits.-

(i) Limitation to emergency services and services for pregnant women.-Notwithstanding any provision of title XIX of the Social Security Act (including subparagraphs (B) and (C) of section 1902(a)(10) of such Act), aliens who, but for subparagraph (A), would be ineligible for medical assistance under paragraph (1), are only eligible for such assistance with respect to-

(I) emergency services (as defined for purposes of section 1916(a)(2)(D) of the Social Security Act), and

(II) services described in section 1916(a)(2)(B) of such Act (relating to service for pregnant women).

(ii) No restriction for exempt aliens and children.-The restrictions of clause (i) shall not apply to aliens who are described in paragraph (2) or who are under 18 years of age.

(C) Definition of medical assistance.-In this paragraph, the term "medical assistance" refers to medical assistance under a State plan approved under title XIX of the Social Security Act.

(4) Treatment of certain programs.-Assistance furnished under any of the following provisions of law shall not be construed to be financial assistance described in paragraph (1)(A)(i):

(A) Richard B. Russel National School Lunch Act.

(B) The Child Nutrition Act of 1966.

(C) 3b/ 3e/ The Carl D. Perkins Career and Technical Education Act of 2006.

(D) Title I of the Elementary and Secondary Education Act of 1965.

(E) The Headstart-Follow Through Act.

(F) 3c/ 3d/ Title I of the Workforce Investment Act of 1998.

(G) Title IV of the Higher Education Act of 1965.

(H) The Public Health Service Act.

(I) Titles V, XVI, and XX, and parts B, D, and E of title IV, of the Social Security Act (and titles I, X, XIV, and XVI of such Act as in effect without regard to the amendment made by section 301 of the Social Security Amendments of 1972).

(5) Adjustment not affecting fascell-stone benefits.-For the purpose of section 501 of the Refugee Education Assistance Act of 1980 (Public Law 96-122), assistance shall be continued under such section with respect to an alien without regard to the alien's adjustment of status under this section.

(i) Dissemination of Information on Legalization Program.- Beginning not later than the date designated by the Attorney General under subsection (a)(1)(A), the Attorney General, in cooperation with qualified designated entities, shall broadly disseminate information respecting the benefits which aliens may receive under this section and the requirements to obtain such benefits.

FOOTNOTES FOR SECTION 245A

INA: ACT 245A FN 1

FN 1 The final sentence of paragraph 5 was first amended by § 384 of IIRIRA , which was effective for "offenses occurring on or after the date of the enactment of this Act." However, § 623(a) rewrites the entire paragraph as shown. The language that was overwritten read as follows: "Anyone who uses, publishes, or permits information to be examined in violation of this paragraph shall be subject to appropriate disciplinary action and subject to a civil money penalty of not more than $5,000 for each violation." See also, section 210(b)(6) as amended by § 623 of IIRIRA .

INA: ACT 245A FN 2

FN 2 See § 377(b) of IIRIRA .

INA: ACT 245A FN 3

FN 3 Added by § 377(a) of IIRIRA , effective as if included in the enactment of the Immigration Reform and Control Act of 1986.

INA: ACT 245A FN 3a

FN 3a Section 752(b)(5) of Public Law 106-78, dated October 22, 1999, amended section 245A(h)(4)(A) by changing "National School Lunch Act" to "Richard B. Russell National School Lunch Act".

INA: ACT 245A FN 3b

FN 3b Section 245A(h)(4)(C) amended by section 3 of Carl D. Perkins Vocational and Applied Technology Education Amendments of 1998, Pub. L. 105-332.

INA: ACT 245A FN 3c

FN 3c Section 405(d)(4) , Pub. L. 105-277, under Technical and Conforming Amendments inserted "or title I of the Workforce Investment Act of 1998."

INA: ACT 245A FN 3d

FN 3d Section 405(f)(4) , Pub. L. 105-277, under Technical and Conforming Amendments further amended section 245A(h)(4)(F) by striking "The Job Training Partnership Act or title" and inserting "Title"

INA: ACT 245A FN 3e

FN 3e Section 2a of Public Law 109-270, dated August 12, 2006, amended section 245A(h)(4)(C) by striking " Carl D. Perkins Vocational and Technical Education Act of 1998" and inserting "The Carl D. Perkins Career and Technical Education Act of 2006".

INA: ACT 245A FN 4

FN 4 Section 4002(b)(1)(B) of Public Law 110-234, dated May 22, 2008, required an amendment to paragraph(b)(2)(J) of Public Law 110-234. Paragraph (b)(2)(J) required an amendment to 8 U.S.C. 1255a which appears in section 245A(h)(1)(A)(iii) of the Immigration and Nationality Act. Accordingly section 245A(h)(1)(A)(iii) is amended by striking "Food Stamp Act of 1977" each place it appears and inserting "Food and Nutrition Act of 2008"