February 19, 2001 --On December 21, 2000, The President signed into law a major immigration legislative package called the Legal Immigration and Family Equity (LIFE) Act and amendments. Three pertinent provisions are explained below.

1) FINAL SUMMARY REAUTHORIZES SECTION 245(i) UNTIL APRIL 30, 2001

One of the provisions of the LIFE Act is the temporary reinstatement of Section 245(i) of the Immigration and Nationality Act (INA). Section 245(i) is not amnesty for all persons unlawfully in the United States. This provision only applies to certain persons residing in the United States who, although otherwise eligible for an immigrant visa, are barred from adjusting their status in the United States. It allows such persons to adjust their status in the United States instead of acquiring their visa abroad.

Under the LIFE Act, the "grandfather" clause of Section 245(i) is extended from January 14, 1998 until April 30, 2001. As a result, any beneficiary of an immigrant visa petition (Form I-130 or Form I-140) or labor certification application filed before April 30, 2001 will be able to apply for adjustment of status under Section 245(i) if necessary. However, for any applications filed after January 14, 1998 (but before April 30, 2001) the applicant must prove they were physically present in the United States on the date of the enactment of the LIFE Act (December 21, 2000) in order to be eligible for Section 245(i) adjustment of status.

An application for adjustment of status (Form I-485) based on Section 245(i) does not need to be filed before April 30, 2001. The application can be filed when an immigrant petition is approved and a visa number is available for the beneficiary in the appropriate preference category in accordance with the State Department's monthly Visa Bulletin. The applicant must also pay the application fee and a $1,000 penalty fee.

2) CREATES A NEW TEMPORARY VISA FOR SPOUSES AND MINOR CHILDREN OF LEGAL PERMANENT RESIDENTS AWAITING AN IMMIGRANT VISA

In order to address the severe backlogs on the availability of visas for families, the LIFE Act provides a remedy for the spouses and minor children of legal permanent residents. By creating a new "V" visa, the law grants some family members a legal status and work authorization in the United States. The law went into effect on the day of enactment, December 21, 2001. However, INS and DOS have not yet issued instructions and/or interim regulations and are not yet accepting applications.

To be eligible for the new V visa, a petition for the applicant must have been filed with INS for second preference status as the spouse of a legal permanent resident under Section 203(a)(2)(A) (also known as the Family 2A category) on or before the enactment of the LIFE Act. In addition, the applicant must demonstrate that since the filing of the petition, he/she has been waiting at least three years for 1) action by INS on the submitted petition, or 2) if the petition has been approved by INS, availability of a visa number under the worldwide numerical limitations, or 3) if a number is available, the application for adjustment of status or an immigrant visa remains pending. V visa status is intended to permit long-separated families to reunite in the United States and together await availability of a visa number. Because V status is available only to those whose petitions were filed on or before December 21, 2000, this category effectively sunsets in three years or when the pool of eligible applicants eventually dissipates with V issuances over time. Unless extended by Congress, it is not a permanent addition to the list of visa classifications.

In addition, the Department of State's intent at this time is to process an applicant as an immigrant visa case if the priority date is current. Those with current priority dates will not be able to elect to apply instead for a V visa. The Department of State will make this clear to the public in an appropriate regulation.

The law also provides that periods in the United States in unauthorized status will not prevent someone from obtaining a V visa (§212(a)(9)(B) shall not apply). The law also would allow individuals already in the United States to apply to "adjust status" to the new V category, even if they are in the United States unlawfully (§212(a)(6)(A), (7), and (9)(B) shall not apply). With the reinstatement of Section 245(i), V visa holders will be eligible to adjust their status to legal permanent resident under that section.

V visa applicants outside the United States will apply for their visa at a U.S. consulate abroad. The bars for applicants unlawfully present do not apply. The exact procedures will be made known once the INS and Department of State issue instructions. Once the V visa holder has a relative petition approved on his or her behalf and a current priority date, he or she can adjust status under 245(a) or 245(i) if qualified. If the V visa holder cannot qualify for adjustment under the 245(a) or 245(i) rules, he or she may qualify under the new 245(m) which requires that the applicant have been physically present any time from July 1, 2000 to October 1, 2000. This will benefit the small number of people who were here during that period, but not here on December 21, 2000.

3) CREATES A NEW TEMPORARY STATUS FOR SPOUSES OF U.S. CITIZENS AWAITING AN IMMIGRANT VISA

Under LIFE, a new K3 status is created for spouses of U.S. citizens. By expanding the eligibility for a K visa, the new law will allow the spouse of a U.S. citizen to enter the United States and obtain work authorization while waiting for the petition to be approved. In order to address the severe backlogs on the processing of petitions for family members, the LIFE Act creates a remedy for the spouses of United States citizens who are outside of the United States and waiting for the approval of an immigrant petition. Any minor children who are seeking to accompany the spouse are also provided protection (K4 status). The petition for this expanded K visa must be filed in the United States by the U.S. citizen spouse. The K visa law now is in effect, but neither INS nor DOS have issued any rules so they are not yet accepting petitions.

To be eligible for the K visa an immigrant visa petition must be previously filed. The law requires that the U.S. citizen file an immigrant petition before a visa can be issued to the spouse abroad. The K visa will allow the spouse abroad to enter the United States and await the approval of the petition. The LIFE Act stipulates that K3 visas may be issued to those who are able to demonstrate that they have concluded a valid marriage with a U.S. citizen and who are the beneficiaries of an I-130 petition filed with INS. The K3 visa allows these spouses to enter the United States to await INS approval of the I-130 petition. Furthermore, the bill provides that this new K status is available both to individuals with currently pending green card petitions and future applicants.

Recipient of the K visa must be outside of the United States. The law only authorizes the visa to be issued by a consular officer outside of the United States. There is no provision to "adjust status" for someone already in the United States in an unlawful status.

If marriage occurs outside of the United States, the consulate where the marriage occurred must issue the K visa. Where the marriage to the U.S. citizen occurred outside of the United States, the statute says that, at the time of admission, the alien must have "a valid non-immigrant visa issued by a consular officer in the foreign state in which the marriage was concluded." An unmarried child of a K3 applicant only needs to demonstrate that he/she is the child of an alien entitled to K3 status in order to obtain a K4 visa. No petition filed on the child's behalf is required