\ afm \ Adjudicator's Field Manual - Redacted Public Version \ Chapter 24 Legalization. \ 24.2 Legalization under Section 245A of the Act.
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24.2 Legalization under Section 245A of the Act
The Legalization provisions are contained in
of the Act. This section of law provides a means for certain aliens who had maintained an unlawful residence in the United States since prior to January 1, 1982, and who were physically present in the U.S. from November 6, 1986 until the date of filing of the application, to become temporary residents. Then upon application and fulfillment of continuous residence and other conditions, they could file for permanent residence.
Injunctions Against INS and Their Effect
Two injunctions have, in effect, extended the filing time for certain aliens. They were the
LULAC vs INS
CSS vs Meese
CSS vs Thornburg
when consolidated at the appellate level) lawsuits. INS is required to accept applications from those seeking class membership under the criteria specified in these injunctions.
LULAC vs INS
: Persons who were illegally in the U.S. before January 1, 1982, but departed and reentered with a fraudulently obtained visa. A waiver under
of the Act must be obtained by concurrent filing of the Form I-690, Application for Waiver of Grounds of Excludability.
CSS vs Thornburg
: Persons who were illegally in the U.S. prior to January 1, 1982, but who made a brief, casual and innocent trip outside the U.S. between May 1, 1987 and May 4, 1988.
The applicant must show that he/she had been misled or discouraged from filing an application before May 5, 1988. Subsequent court decisions have maintained that a simple statement from the alien is sufficient to prove that the alien departed and returned and was “front-desked” by INS.
Some applications filed under these two injunctions are supported by fraudulent affidavits and class membership could be denied on the basis that the affidavits cannot be verified. Some document vendors furnish complete cases for the aiens to file in order to gain employment authorization
Applications for Temporary Residence
Filing of the Application
The proper application to file requesting classification as a temporary resident was the Form I-687. The complete application contained Form I-687, photographs, Form I-693 (Medical Examination), Form FD-258 (Fingerprint Cards (2)), proof of identity, and evidence of eligibility. The forms could be filed with a Qualified Designated Entity (QDE) (an organization approved by the Attorney General to accept and process legalization applications). Authority for QDEs to accept applications expired at the end of th
e prescribed application filing period). A 90 million series A-file was created for each applicant.
The filing period for Legalization applications was from May 5, 1987 through May 4, 1988. One group of aliens, those classified as "Extended Voluntary Departure", could apply for temporary residence until December 22, 1989.
Initial Review of the Application
The Form I-687 is an application for temporary residence for a legalization applicant. The evidence supplied with the application is first reviewed by an officer in the District Office. The alien must prove by a preponderance of the evidence that he or she is eligible for temporary residence. The evidence must be verifiable. Proof of identity must be furnished. And if assumed names have been used by the alien, then proof of common identity must be furnished. Proof of the qualifying illegal residence periods
must be furnished.
An Immigration Adjudicator within the District Office will make a preliminary decision to grant or to deny the application. Form I-696 will be completed, to document the officer's recommendation, and placed in the A-file. If the initial decision is to grant the application, then the Employment Authorization Document, Form I-688A, is issued to the alien. At this time the Temporary Resident Alien Card, Form I-688, is created and placed in a filing cabinet in terminal digit order. If the initial decision is to
deny the application on statutory grounds that do not allow for a waiver, no employment is authorized. The file is then transferred to the Service Center having jurisdiction over the area where the alien resides.
When the application for temporary residence is granted, a letter is sent from the Service Center requesting that the alien report to a local office to receive the Form I-688, Temporary Resident Alien Card. The I-688 indicates that temporary residence is granted under
of the Act.
The date of adjustment to temporary resident status is the date of fee receipt.
Termination of Temporary Residence
Temporary residence may be terminated for cause. Circumstances must exist that would make the alien ineligible for permanent residence (e.g., a felony conviction). The alien is sent a
Notice of Intent to Terminate Temporary Resident Status
, stating the reasons that would make the alien ineligible for permanent residence or temporary residence if that status was granted in error. The alien is granted 30 days to respond or rebut the allegations. If no satisfactory response is received, the temporary resident status is terminated by an order issued by a service center director.
Application for Permanent Residence
The temporary resident under
of the Act could file an application for permanent residence at any time after attaining temporary residence. However, the application would not be processed until the beginning of the nineteenth month after the alien received temporary residence (date the fee for the Form I-687 was receipted by INS). The application package should contain Form I-698,
Application to Adjust Status from Temporary to Permanent Resident (Under Section 245A of Public Law 99-603)
, Form I-693, medical examination form, and one color photograph. IMMACT 90 extended the time period for filing for permanent residence to a maximum of 42 months from the date the alien received temporary residence.
The application is filed with the Service Center having jurisdiction over the place of residence of the alien.
The applicant for permanent residence must show continuous residence from the time temporary residence was granted. The alien could be absent from the U.S. for an aggregate period of 90 days, but no more than 30 days in a single absence, unless he or she could show circumstances beyond their control or of an emergent nature.
Knowledge of U.S. History and Government
of the Act must be met by taking a standard
test or by certificate of satisfactory completion in a study program approved by the Attorney General, or the alien must be pursuing a course of study approved by the Attorney General. Once the section 312 conditions are met, the alien is not required to take another examination for history and government for naturalization. The section 312 requirements may be waived for an applicant over the age of 65.
If the application for permanent residence is complete and approved by the Service Center, then the applicant is sent an interview notice from the Service Center scheduling the alien for an interview at a district office. The interview consists of verifying identity, the completion of section 312 requirements, and the processing of the Form I-89 for the resident alien card.
The exclusion grounds not applicable to legalization applicants were paragraphs (5) (requirement for labor certification) and (7)(A) (immigrant visa requirement) of
of the Act. Applicants who were not admissible to the United States for other grounds could file Form I-690,
Application for Waiver of Grounds of Excludability
, for all grounds contained in
of the Act, except for those offenses defined in paragraphs (2)(A) and (2)(B) (relating to criminals); paragraph (4) (relating to aliens likely to become public charges); paragraph (2)(C) (relating to drug offenses, except for a single offense of simple possession of marijuana, 30 grams or less); and paragraph (3) (security related grounds, except for subparagraph (3)). A felony conviction or conviction of three or more misdemeanors made the applicant ineligible for temporary residence and permanent reside
A final denial may be issued by the District Director in an admitted fraud case or where the applicant did not meet statutory requirements. The denial is issued on form I-292 stating the reasons for the denial, and informing the applicant of appeal rights. Should the District Director not wish to make the final decision, with a recommendation of denial, the case could be referred to the Service Center Director having jurisdiction over the residence of the applicant. The denials issued by a Service Center Di
rector are issued on form I-692 setting forth the specific reasons for the denial and informing the applicant of appeal rights. When the denial is issued the applicant should be sent three copies of Form I-694,
Notice of Appeal of Decision Under Section 210 or 245A of the Immigration and Nationality Act
. If the decision of the District Director or the Service Center Director is appealed, the appeal must be filed with the Director who denied the application within 30 days of receipt of the written denial. After receipt of the fee, the appeal is forwarded to the Administrative Appeals Office. Untimely appeals are accepted as motions to reopen and either granted on the basis of additional evidence submitted or forwarded to the Administrative Appeals Office.
INS, USCIS, and DHS may not use or disclose information in a legalization application or its accompanying evidence except to adjudicate the application itself, or for certain law enforcement functions and fraud proceedings. If the legalization application is granted, however, and the alien later files an immigrant visa petition or other status petition under
of the Act, INS and USCIS may use information in the legalization file in adjudicating the immigrant visa petition. This also applies to adjudicating a later naturalization application. Consult with district counsel when contemplating any use or disclosure of this information.
Matter of O-
, 19 I & N Dec. 871 (Comm’r 1989)
. The Legalization Appeals Unit will
reopen and reconsider section 245A of the Act cases where there appears to be manifest injustice in the original decision. A nonimmigrant exchange visitor is eligible for temporary resident status if he/she was not subject to
of the Act or obtained a waiver of section 212(e).
Matter of M-
19 I & N Dec. 861 (Comm’r 1989)
. A conviction exists pursuant to
of the Act where a judge or jury has found the alien guilty or a plea of guilty or nolo contendere, and the judge has ordered some form of punishment, including but not limited to a fine or probation.
Matter of S-
19 I & N Dec. 851 (Comm’r 1988)
. An immigrant alien who entered the U.S. prior to 1/1/82 is eligible for temporary resident status if he/she can prove that they were residing in the U.S. in unlawful status since such date. An immigrant who entered the U.S. by means of fraud prior to 1/1/82 must file a waiver of grounds of excludability to be eligible for temporary residence.
Matter of P-
, 19 I & N Dec. 823 (Comm’r 1988)
. The Application for Waiver of Excludability (Form I-690) should be adjudicated separately form the Application for Status as a Temporary Resident (Form I-687). A nonimmigrant alien whose unlawful status is known to the U.S. Government prior to 1/1/82 is eligible for temporary resident status under section 245A of the Act, if otherwise qualified.
Matter of C-
, 19 I & N Dec. 808 (Comm’r 1988)
. An absence from the U. S. in excess of the 30 day limit does not interrupt continuous residence defined in 8 CFR 245A.1(c)(1)(i) if the absence was unexpected and emergent.
Matter of N
, 19 I & N Dec. 760 (Comm’r 1988)
. A student who acquired reinstatement by fraud, by not revealing unauthorized employment, did not obtain lawful status. Waiver of excludability is required prior to the grant of temporary residence.
Matter of Medrano
, 20 I&N Dec. 21 (BIA 1990)
. The status of a lawful temporary resident under section 245A of the Act who commits a deportable offence must be terminated as a condition precedent to the commencement of deportation proceedings, except as provided by the “Medrano regulations” found at 8 CFR 245a.2(a)(2)(ii).