of Status under the Legal Immigration Family Equity Act (“LIFE
Legal Immigration Family Equity Act (“LIFE Act”) permits
adjustment of status for certain aliens who would otherwise be ineligible
to adjust their status under INA Section 245(a).
LIFE Act, Pub. L. No. 106-553 (Dec. 21, 2000), and the LIFE
Act Amendments, Pub. L. No. 106-554 (Dec. 21, 2000). Under
section 245(i) of the Act, adjustment of status was available
to alien crewmen, aliens continuing or accepting unauthorized employment,
aliens admitted in transit without visa, and aliens who entered without
inspection. INA Section 245(i)(1)(A)(i)-(ii). This law sunset on January
14, 1998, but was revived under the LIFE Act, which extended INA Section
245(i) to April 30, 2001.
Section 245(i) is now expired except for those aliens who already
grandfathered. To seek adjustment under INA Section 245(i), the alien
must pay a penalty (currently $1,000) and file a Form I-485 with Supplement
A. 8 C.F.R. Section 1245.2(a)(3)(iii). To be grandfathered under INA
Section 245(i), the alien must be the beneficiary of either a labor
certification under INA Section 212(a)(5)(A) or a petition under INA
Section 204 (including I-140, I-130, I-360, I-526) that was filed
on or before April 30, 2001. A beneficiary can adjust status based
on an immigrant visa petition or labor certification that was approved
after April 30, 2001, so long as his petition or application for certification
was “properly filed” (postmarked or received by the Department)
on or before April 30, 2001, and “approvable when filed.”
8 C.F.R. Section 1245.10(a)(2). “Approvable when filed”
means the qualifying petition or application was properly filed, meritorious
in fact, and non-frivolous (“frivolous” being “patently
without substance”). 8 C.F.R. Section 1245.10(a)(3). If the
labor certification or petition was filed after January 14, 1998,
the applicant must have been physically present in the U.S. on December
21, 2000. INA Section 245(i); 8 C.F.R. Section 1245.10; LIFE Act Section
1502(a)(1)(B), Pub. L. No. 106-553. If the original beneficiary of
an application for labor certification was subsequently replaced by
another alien on or before April 30, 2001, only the substituted beneficiary
would be considered a grandfathered alien. 8 C.F.R. Section 1245.10(j).
be eligible to adjust to lawful permanent resident status under INA
Section 245(i), the alien must show that he is not inadmissible from
the United States or that all grounds of inadmissibility have been
waived. INA Section 245(i)(2)(A); 8 C.F.R. Section 1245.10(b)(3).
The Board has clarified that INA Section 245(i) implicitly waives
only the ground of inadmissibility under INA Section 212(a)(6)(A)(i)
(unlawful entry). Matter
of Briones, 24 I&N Dec. 355, 363 (BIA 2007). An alien who
is inadmissible under INA Section 212(a)(9)(B)(i)(II) (unlawful presence
prior to departure or removal who seeks admission) or Section 212(a)(9)(C)(i)(I)
(unlawful presence prior to entry or attempted reentry without being
admitted), is therefore not eligible to adjust to lawful permanent
resident status under INA Section 245(i), absent a discretionary waiver
of the ground of inadmissibility. Matter
of Lemus-Losa, 24 I&N Dec. 373, 377-80 (BIA 2007); Matter
of Briones, 24 I&N Dec. at 362-71.
LIFE Act also allows for adjustment of status for aliens who filed
before October 1, 2000, for class membership in one the “late
amnesty” lawsuits—i.e., Catholic
Social Services, Inc. v. Meese, vacated
sub nom., Reno v.
Catholic Services, Inc., 509 U.S. 43 (1993); League
of United Latin American Citizens (“LULAC”) v. INS,
vacated sub nom.,
Reno v. Catholic Services,
Inc., 509 U.S. 43 (1993); or Zambrano
v. INS, vacated,
509 U.S. 918 (1993). LIFE Act, Sections 1104 and 1503, Pub. L. No.
106-553, 106-554; 8 C.F.R. § 245a.10 - 245a.22. In order to qualify,
the alien must have entered the U.S. before January 1, 1982, and resided
continuously in the U.S. in an unlawful status since that date through
May 4, 1988. 8 C.F.R. Section 245a.11. He must also have been continuously
present in the U.S. from November 6, 1986 through May 4, 1988, must
not have been convicted of a felony or of three or more misdemeanors
in the U.S., and must not have been a persecutor. 8 C.F.R. Sections
245a.11, 245a.16, 245a.18. An alien is not considered to have failed
to maintain continuous physical presence in the U.S. by virtue of
brief, casual, and innocent absences from the U.S. 8 C.F.R. Section
245a.16. Further, the alien must demonstrate that he is admissible
except for grounds of inadmissibility under INA Section 212(a)(5)
and 7(A). 8 C.F.R. Section 245a.18. The Attorney General may waive
certain other provisions of section 212(a) of the Act under INA Section
245A(d)(2)(B), although not those provisions relating to crimes involving
moral turpitude, multiple criminal convictions, or others enumerated
in 8 C.F.R. Section 245a.18(c)(2). Id.
The alien may also apply for a waiver of inadmissibility under section
212(a)(9)(A) and (C) of the Act. Id.
Further, he must be registered or be registering under the Military
Selective Service Act, if so required, and have or demonstrate basic
citizenship skills. 8 C.F.R. Section 245a.11.
application period for a “late amnesty” filing for adjustment
began on June 1, 2001 and ended on June 4, 2003, during which time
an alien had to file with the Department of Homeland Security a Form
I-485: Application to Register Permanent Residence or Adjust Status.
8 C.F.R. Sections 245a.11, 245a.12. However, under the terms of settlement
agreements reached with the Department, the filing deadline for certain
legalization applicants under the terms of Catholic
Social Services and LULAC
was extended until December 31, 2005. See
Order Approving Settlement of Class Action, Catholic
Social Services v. Ridge, No. Civ S-86-1343-LKK (E.D. Cal.
Jan. 23, 2004) available at
Order Approving Settlement of
Class Action, Newman v. U.S.
Citizenship and Immigration Services, Civ. No. 87-4757-WDK
(CWx) (E.D. Cal. Feb. 18, 2004) available
Press Release, U.S. Citizenship and Immigration Services, USCIS Announces
Extension of Deadline for Filing Applications Pursuant to the CSS
and LULAC (NEWMAN)
Settlement Agreements (May 16, 2005) available
Confidentiality provisions apply to the information furnished pursuant
to such applications. 8 C.F.R. Section 245a.21.
Department has jurisdiction over all applications for the benefits
of LIFE Legalization under the “late amnesty” lawsuits.
8 C.F.R. Section 245a.12(b). An alien who is in exclusion, deportation,
or removal proceedings, or who has a pending motion to reopen or motion
to reconsider, and who is prima facie eligible for adjustment of status
under LIFE Legalization, may request that the proceedings be administratively
closed or that the motion filed be indefinitely continued, in order
to allow the alien to pursue a LIFE Legalization application with
the Department. 8 C.F.R. Section 245a.12(b)(1). With the concurrence
of the Department, if the alien appears eligible to file for relief
under LIFE Legalization, the Immigration Court or the Board, whichever
has jurisdiction, shall administratively close the proceeding or continue
the motion indefinitely. Id.;
see also Matter
of Morales, 21 I&N Dec 130 (BIA 1996).
Family Unity provisions of the LIFE Act apply to “late amnesty”
applications. LIFE Act, Section 1504, Pub. L. No. 106-554; 8 C.F.R.
Section 245a.31. An alien currently in the U.S. may obtain Family
Unity benefits if she establishes that she is the spouse or unmarried
child under the age of 21 of an eligible alien at the time the Family
Unity application is adjudicated; she entered the U.S. before December
1, 1988, and resided in the U.S. on that date; and, if applying for
Family Unity benefits on or after June 5, 2003, she is the spouse
or unmarried child under the age of 21 of an alien who has filed a
Form I-485. 8 C.F.R. Section 245a.31. An alien is ineligible for Family
Unity benefits if she has committed one of several offenses, including
being convicted of a felony or three or more misdemeanors, and having
engaged in persecution of others. 8 C.F.R. Section 245a.32.
TO GENERIC ORDER