Published February 2001

New law offers immigrant workers, families a LIFEline

By Terry Thompson Preshaw
Guest Editorial

As a parting gift to American businesses and families, President Clinton signed a major immigration legislative package — the Legal Immigration and Family Equity Act (LIFE) — into law Dec. 21.

Many legally employed green-card holders (permanent residents) are separated from their families because of the unconscionable Immigration and Naturalization Service (INS) processing backlogs. U.S. consulates typically will not issue visitor visas to immediate family members of a green-card holder.

Under LIFE, a new, temporary non-immigrant “V” status will be available to spouses and minor children (unmarried and younger than 21) of lawful permanent residents waiting more than three years for an immigrant visa based upon an immigrant petition filed on or before Dec. 21, 2000. Those granted “V” status will receive employment authorization and will be protected from removal.

While this legislation is an improvement, a three-year wait is still too draconian, and I hope the new administration and Congress will address this unacceptable inequity quickly.

Our proximity to Canada has resulted in many a Canadian/American romance culminating in marriage in Canada. Many of these couples are uninformed about U.S. immigration laws and are devastated to learn that the Canadian spouse can be refused entry into the United States.

Fortunately, the “K” visa (formerly known as the “Fiancé visa”) has been expanded to include spouses and their children living abroad as well as fiancé/ees of U.S. citizens. The “K” visa petition must be filed in the United States by the U.S. citizen spouse before the visa can be issued to the spouse abroad. There is no adjustment of status provision, which means that this status is only available for spouses who are out of the country. This legislation could have been improved by including spouses and children of green-card holders and allowing in-country processing.

What about people who would have qualified for adjustment of status to permanent resident but for an inadvertent status violation? A temporary LIFEline has been thrown to these folks: Section 245(i) of the Immigration and Nationality Act, which allows adjustment of status in spite of status violations by paying the INS a $1,000 penalty, will be available to people who were physically present in the United States on Dec. 21, 2000, and who are the beneficiaries of either an immigrant petition or a labor certification filed on or before April 30, 2001.

Employers: This is a wake-up call — you can legalize those compromised workers if you file a labor certification in time.

According to a recent news release, the INS (www.ins.usdoj.gov) is anticipating that processing of the new “V” visa and the expanded “K” visa could start early this spring. In spite of the “dinosaurian” way in which the INS bureaucracy moves, LIFE will find a way (apologies to Michael Crichton).

Terry Thompson Preshaw, a U.S./Canadian dual citizen, practices U.S./Canadian immigration and nationality law with her law firm, Preshaw & Zisman, in Everett and Vancouver, British Columbia.

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