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Published: 2008-03-26

Short Summary of the New Immigration Law



On the last day of September, 1996, President Clinton signed into law legislation which drastically changes the immigration laws of the U.S.. Many of these changes will effect the ability of aliens now in the U.S. to change their status to other nonimmigrant categories (such as H-1 "working " visas, student visas, treaty trader and investor status, etc.) or obtain lawful permanent residence ("green card" status). Also the rights of people both legally and illegally in the US to defend themselves in deportation proceedings or to re-enter the U.S. after a trip abroad have been drastically curtailed. The new law is over 200 pages long and contains many provisions increasing the funding and staffing of the Border Patrol, the investigations branch of the Immigration and Naturalization Service (INS) and other areas of immigration law enforcement. It also raises civil and criminal penalties for immigration law violations. Legislation passed earlier this year (Welfare Reform Act) also makes both illegal and legal immigrants ineligible to receive most forms of federal assistance including many types of Social Security benefits as well as federally insured student loans. We strongly recommend that anyone interested in becoming a lawful permanent resident or a US citizen apply immediately.

A few of the important changes that will affect all people who are not US citizens include:

(1) New Grounds of Inadmissibility

This provision will make persons who remain illegally in the U.S. for certain periods of time ineligible for lawful permanent residency ("green card" status) and other types of non-immigrant visas (such as H-1B "working" visas, F-1 "student" visas, B1/2 "tourist/business" visas). The new grounds include a 10 year bar to admission for those unlawfully present in the U.S. for an aggregate period of 12 months; and a 3 year bar for those here unlawfully for 180 days; both with limited waivers. Time in unlawful status to begins 6 months after date of enactment (e.g., April 1, 1997). Permanent ban on reentry for aggravated felons.

This means that if an alien overstays a tourist visa (or any other type of non-immigrant stay) or enters the U.S. illegally, and remain in the U.S. for more than 180 days in total after April 1, 1997, the person cannot return to the U.S. for three years.

People who overstay or enter illegally and remain in the U.S. for over one year in total, cannot return to the U.S. for 10 years.

Although there will be some waivers for people with close family members is the U.S. they will be very difficult to obtain. Also, aliens (even lawful permanent residents) who make a false claim of U.S. citizenship or who vote in elections will be deported or prevented from returning to the U.S..

(2) Cancellation of Visas for Overstayed Aliens

In addition to the above, after Sept. 30, 1996 any alien who overstays the time he/she is legally allowed to remain in the U.S. automatically has his/her visa canceled. Only the American Consulate in the country of the alien's nationality can issue a new visa unless "extraordinary" circumstances exist.

The alien may also be ineligible to apply for a new visa under 3/10 year ban.

(3) New Income Requirements for Affidavits of Support

The new law imposes an arbitrary income level of 125% of the poverty level (based on size of alien's and sponsor's family) in order for U.S. citizens and permanent residents to petition for their close family members. A petitioner who does not have the necessary income can have a "co-sponsor" also guarantee financial support. Affidavit of Supports will now be contractually binding on sponsors in regard to any government assistance received by the sponsored aliens.

(4) Summary Exclusion Provisions and Limits on Asylum

This provision of the new law requires screening at all ports of entry at all times for those who arrive with fraudulent documents or no documents; immediate return of those who cannot prove a "credible fear" of returning; no asylum for those arriving from a third country; aliens entering without inspection and in US less than two years may be subject to summary exclusion at the discretion of the Attorney General. Those fearing persecution in their home country will have to file for asylum within one year of their arrival unless conditions in their country have changed or there are "extraordinary circumstances".

(5) Court-Stripping Provisions

This section of the new law eliminates the ability of the courts to hold INS accountable for its actions. It bars judicial review of crime-related removal orders, any discretionary relief decisions (such as adjustment of status, suspension of deportation and asylum), summary exclusion orders or procedures (except for Constitutionality); and bars class actions for injunctive relief.

(6) Limits on Relief From Deportation

New removal proceedings, with "cancellation of removal" similar to the current 212(c) waiver for lawful permanent residents who have criminal conviction and suspension of deportation for long time residents of the U.S.. Suspension will now require 10 years continuous residence (instead of the current 7 years) prior to initiation of removal proceedings (upon issuance of OSC) and showing of exceptional and extremely unusual hardship, a higher standard. The new law retains 212(c) relief for lawful permanent resident with less serious criminal convictions and with 7 years continuous residence (5 of those must be as a lawful permanent resident). There is a complete bar to those convicted of "aggravated felonies" which is a defined term and includes many crimes that have relatively short State prison sentences (e.g.: drug and firearm violations).

(7) Deportation of Aliens Who Receive Government Benefits

The new law requires the deportation of any legal immigrant who uses the few means-tested programs still available after the Welfare Reform Law, such as federally-funded English classes or student loans. Public schools will no longer be able to "sponsor" foreign students for F-1 visas.

(8) Employer Verification/Discrimination

The new law establishes pilot programs with the creation of new INS and Social Security System databases, however there are no protections for job applicants denied jobs due to errors in databases.

Employees seeking to prove job discrimination based on immigration status must now prove intent to discriminate by employer.