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By Albert Baldeo |
April 2002: One of the benefits of the Legal Immigration Family Equity Act (LIFE Act), enacted on December 21, 2000 in the USA was the implementation of the new "V" nonimmigrant status to allow certain spouses and minor children of lawful permanent residents to reside and work in the United States while waiting to obtain permanent immigrant status or green cards.
Under this law, the spouse or unmarried child (under 21 years of age) of a lawful permanent resident is eligible for the "V" nonimmigrant classification, if he/she:
(1) Had a Form I-130 (Petition for Alien Relative) filed with the INS on his or her behalf by the lawful permanent resident spouse or parent on or before December 21, 2000; and
(2) Has been waiting for at least three years after the Form I-130 was filed for their immigrant status -- either because a visa number (priority date) has not yet become available, or because INS has not yet adjudicated the Form I-130 or the Form I-485 (Application for Adjustment to Permanent Residence).
The unmarried children (under 21 years of age) of a person who can fulfill the above requirements, are also eligible for "V" status.
Eligible persons living in the United States can apply for V nonimmigrant status with the INS by submitting the relevant applications, medical forms and requisite fees (including fingerprinting fees), to the INS. The medical forms must be completed by a certified civil surgeon, but the vaccination supplement is not necessary.
Any qualifying illegal person or person can apply for a "V" visa without leaving the US.
Eligible persons living abroad may apply for a "V" visa with the Department of State at the U.S. Embassy or Consulate where the immigrant visa would have been processed. After entering the United States with their "V" nonimmigrant visa, they may apply for work authorization with INS.
"V" nonimmigrants may travel to and from the United States while they wait for their immigrant status. However, persons who have been unlawfully present in the United States for more than 180 days may become inadmissibile for reentry for three years or 10 years. The bars for unlawful presence do not prevent eligible persons from obtaining "V" status, or from being readmitted to the United States with a "V" visa following travel abroad. However, unless such persons seek and are granted a waiver by INS, these grounds of inadmissibility will prevent them from adjusting status to lawful permanent resident (for the applicable 3-year or 10-year period).
"V" nonimmigrants who wish to travel abroad while they are waiting for immigrant status do not need to obtain permission or advance parole from INS prior to their departure. However, in order to return to the United States, "V" spouses and children must have a valid "V" visa in their passport issued from the Department of State.
Those who obtained "V" status while in the United States and then travel abroad must obtain a "V" visa from the Department of State at a U.S. Embassy or Consulate abroad before they can be readmitted to the country.
In related news in a decision at odds with other federal appeals courts, the 3rd U.S. Circuit Court of Appeals has ruled that an immigrant should not be automatically deported on the basis of a state felony drug charge.
The court ruled that an immigrant should be deemed an "aggravated felon'' and automatically deported only if the crime would also be considered a felony under federal law. The decision rejected the views of seven other circuit courts.
"Under the approach espoused by those courts of appeals, as long as the state drug conviction is a felony under state law, it need only be punishable, either as a misdemeanor or a felony, under federal law'' for it to require deportation, Chief U.S. Circuit Judge Edward R. Becker wrote.
As a result, he wrote, a person in a state where a drug offense is a felony may face deportation while a person in a different state could be allowed to stay, "simply because the two states punish the same crime differently.''
"This cannot be what Congress intended in establishing a 'uniform' immigration law,'' Becker wrote.
The ruling means that David Gerbier, a native of Haiti who has been a permanent U.S. resident since 1984 and was convicted in Delaware of drug charges, now may seek cancellation of his deportation order from the U.S. attorney general. If the appellate court had not overturned the lower court's decision that Gerbier is an "aggravated felon'' under the Immigration and Naturalization Act, his deportation would have been automatic.
The ruling applies only to federal courts under the jurisdiction of the 3rd Circuit - in Pennsylvania, New Jersey, Delaware and the Virgin Islands.
Because of this and other rulings that have favored immigrants, the White House wants to limit the scope of appeals open to immigrants who are either in the country illegally or are permanent residents.
The administration has proposed changes to United States Justice Department regulations that reform the Board of Immigration Appeals. At the same time, it is seeking to curtail some of the steps the Board takes to approve or reject deportation orders.
The White House said that said the Board shouldn't hear any new evidence presented by immigrants to support their appeals. In addition, it is proposing that the number of career government lawyers who comprise each Board should be reduced from three to one. This is a way to get cases decided more quickly and to use our resources more effectively," said a Justice Department spokesman. "It is not an attempt to try to control the outcome of cases."
But Senator Edward Kennedy, a Democrat of Massachusetts who is Chairman of a senate Immigration sub-committee in Washington, described the proposals as "drastic changes" which must be carefully reviewed.
"I have serious concerns about the attempt to further reduce an immigrant's rights to seek review before an appellate judge," he stated.