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INS General Counsel List of Resolved Issues

Cite as “Posted on AILA InfoNet at Doc. No. 99122271 (Dec. 22, 1999) .”

December 10,1999

H. Ronald Klasko, Esq
Dechert, Price & Rhoads
4000 Bell Atlantic Tower
1717 Arch Street
Philadelphia, PA 19103-2793

Daryl Buffenstein, Esq.
Paul, Hastings, Janofsky & Walker
600 Peachtree St., NE
Suite 2400
Atlanta, GA 30308

Dear Ron and Daryl:

Thank you for your visit today, and for your prompt review of
the items we sent to you earlier this week. Based on your comments of
December 8 and on our conversation today, I believe that the attached list
correctly sets out our common understanding on twenty-one points that you
have raised in past liaison meetings. If there is any need for further
revision or discussion, please let me know. Where these points set out
interpretations of implementing decisions of the INS, those interpretations
or decisions of course remain subject to change in the future. Nevertheless,
they represent our best understanding of the current law and practice.
Please feel free to circulate these materials among your members.

I am grateful for the efforts you and your colleagues have
invested in our liaison meetings. I believe that the AILA-INS General
Counsel Liaison meetings have been fruitful, and I look forward to continued
progress.

Sincerely,

Bo Cooper
General Counsel

Items from the AILA-General Counsel Liaison Meetings

1.. An alien whose I-94 indicates “D/S” does not accrue
unlawful presence time commencing when the INS initiates removal
proceedings; rather, it commences from the date of an immigration judge’s
order that the alien is removable. This assumes that the INS has not denied
the extension of stay or change of status
2.. An alien who leaves the United States voluntarily and not
under an order of removal after being placed in proceedings is not subject
to the three-year bar if the alien’s unlawful presence was less than one
year. Also, if an alien leaves the United States in such a situation,
returns with a legal visa (such as an H-1B) and then travels without any
further period of unlawful presence, the alien is not subject to the
three-year bar upon return.
3.. Aliens who are paroled into the United States are
considered “authorized by the Attorney General” to be in the U.S. and do not
accrue unlawful presence time so long as they do not violate the terms of
their parole.
4.. If a conditional resident timely files a condition removal
application and the INS denies the application, the alien is not considered
unlawfully present while awaiting removal proceedings and during removal
proceedings in which the alien will renew the conditional residence removal
application. If the condition removal application is not timely filed, the
alien is considered unlawfully present unless the INS agrees that it was not
timely filed for good cause.
5.. For purposes of counting the 120 day three-year bar
tolling for a timely-filed extension of change of status application, the
first day in considered to be the day after the expiration of Form I-94 and
not the date of filing the extension or change of status application. The
INS is considering AILA’s position that aliens with timely filed pending
applications for change or extension of status should be treated as being
“authorized by the Attorney General” during the time the application is
pending with the INS after 120 days.
6.. If an alien has been granted voluntary departure at the
conclusion of proceedings but files a timely appeal, a voluntary departure
bond must be timely posted.
7.. An individual who is granted 212(c) relief prior to the
passage of AEDPA for an aggravated felony cannot be placed in removal
proceedings for the same offense. This does not apply, however, if the alien
is subsequently convicted of another crime.
8.. The spouse or child of a grandfathered alien as of January
14 is also grandfathered for section 245(i) purposes. This means that the
spouse or child retains his or her grandfathered status irrespective or
whether or not the spouse adjusts with the principal. The pre-January 15
spouse or child also retains grandfathered status even after losing the
status of spouse or child, such as by divorce or by becoming 21 years of
age.
9.. Spouses or children accompanying or following to join a
grandfathered alien are eligible to adjust under section 245(i). Therefore,
even if the individual was not a spouse or child as of January 14, he or she
can adjust under section 245(i) if he or she is a spouse or child at the
time of the principal’s adjustment.
10.. Despite an unpublished, non-precedent opinion of the
Board of Immigration Appeals that an alien is grandfathered for purposes of
section 245(i) by virtue of applying for the DV lottery prior to January 15,
1998, the INS position is that such aliens are not grandfathered.
11.. INS has agreed that adjustment of status under NACARA is
mandatory, and not discretionary. However, if a waiver is needed,
adjudication of the waiver is discretionary.
12.. An alien does not accrue unlawful presence time when an
immigration judge’s order denying voluntary departure is reversed on appeal.
The period from the denial of voluntary departure to the grant of voluntary
departure on appeal will be considered authorized by the Attorney General.
It should be noted that unless otherwise in a period of stay authorized by
Attorney General, the alien is accruing time unlawfully present while he or
she is appealing the IJ ruling denying voluntary departure. Only after the
alien prevails on appeal will the INS go back and determine that there was
not net accrual of time unlawfully present during the time the ruling was on
appeal.
13.. For purpose of the three and ten-year bars, where the INS Asylum Unit has referred an asylum case, the asylum application is considered pending while the alien is in proceedings, while an appeal is pending with the Board, and while review is pending in federal court. Pre-asylum reform applications that are denied by the INS are also considered pending for the purpose of section 212(a)(9)(B)(iii)(II) during
the period between denial by the asylum office and renewal in front of the immigration court. Once it is renewed, the case is covered by the broader provision governing asylum Applications.

14.. INS has agreed to administratively close all OSCs and
issue NTAs where a non-aggravated felon respondent would have benefited in
applying for 212(c) and where such respondent was not eligible under AEDPA,
in anticipation of a regulation which will allow the cases to be repapered.
15.. INS has reinterpreted section 303(b)(2) of IIRAIRA and
section 236(c) of the INA to require detention only when the alien was
released from prison after the expiration of the TPCR. Any alien who was
granted bond from INS custody before the expiration of the TPCR would not be
subject to section 236(c). Such an alien has probably been released by now.
16.. Unlawful presence does not accrue while a conditional
suspension grantee or a conditional cancellation of removal grantee is in
conditional grantee status.
17.. For purposes of section 245(k), an alien may adjust under
section 245(a) as long as the alien, as of the date of filing, has not
violated status, has not engaged in unlawful employment, and has not had any
violations of the terms and conditions of nonimmigrant admission, for a
period in excess of 180 days in the aggregate subsequent to the alien’s last
admission under which she is presently in the United States.
18.. The Commissioner issued a memorandum on April 19, 1999,
wherein she discussed what status Cubans paroled from detention will have
which will enable them to file for adjustment under the Cuban Adjustment
Act. This memorandum was printed in 76 Interpreter Releases 684 (1999).
19.. The ACWIA statute and INS regulations are silent on
whether an employer can accept reimbursement or compensation of the $500
H-1B job training fee from a source other than the alien. INS is unable to
speak to whether third party reimbursement violate any Department of Labor
rules. The INS is preparing final regulations on the ACWIA fee after
consideration of public comments.
20.. With respect to 245(i) grandfathering, the INS continues
to agree that the alien is grandfathered rather than any particular petition
or application being grandfathered. The INS’ present position is that the
pre-January 15 petition or application must have been “approvable” at the
time of filing or the labor certificate application must have been properly
filed in order to result in grandfathering of the alien. It is not relevant
to grandfathering if a change of fact or law subsequent to the filing
renders the petition or application subsequently non-approvable.
21.. The issue of whether an alien is subject to the two-year
home residence requirement is an issue of law to be determined by the
Immigration and Naturalization Service.

© 1999, American Immigration Lawyers Association

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