Staying Legal : A Guide to Phase 2 of the Immigration Amnesty Law : Questions & Answers
The new immigration law was a careful compromise, and as such it has many complicated provisions. Those who are now going through the second phase of the amnesty program may understandably be somewhat confused. To help clear up any misunderstandings about the program, Times staff writer Marita Hernandez posed the following questions to William King, INS regional director for immigration reform.
Question: If I have my temporary residence card, is that good enough to stay in the United States legally?
Answer: No. Once you achieve temporary residence, you have an 18-month period of temporary status and then you have a one-year window following that in which to qualify for permanent residence. Somebody who applied in May of 1988, for instance, would be eligible to apply for permanent residence in November of this year.
We’re very, very much concerned about people getting their applications in on time. We don’t want them to revert to an illegal status, and that would happen if they don’t meet these Phase 2 requirements. You should be planning to file immediately when you become eligible.
Q: Let’s say that I received my temporary residence card more than a year ago, but I’ve heard nothing from INS since. What should I do?
A: You should go to the (INS) Legalization Office where you filed your application and make an inquiry. They can call you up on their computer system and they should be able to give you a response right there. You should be able to get a status report as to where you stand with respect to your application and your status.
Q: At what point would you advise applicants to check with their Legalization Office?
A: Everybody who has qualified for temporary residence should receive in the mail a manual--a temporary residence guide to applying for permanent residence--60 days before they are eligible to apply for permanent residence. These things are automatically mailed to their last address. (If not) you can pick up application forms at any Legalization Office. We’ll be making them available to community groups as well.
It’s very, very important that they tell us when they move. Applicants should submit a change of address report to us whenever they move because if we can’t find them, they could be out of luck.
Q: What about applicants who have only their work permit and haven’t even been called in by INS for their temporary residence interview? What should they do?
A: In all cases, they should by now have been assigned an interview date. They should wait for that interview. (If not) they should go to their nearest Legalization Office and fill out a change of address card and we’ll take it from there.
Q: Meanwhile, how can an applicant begin preparing to fulfill the requirements necessary to file an application for permanent residence?
A: The principal concern is that they either meet the educational requirement or that they fall under one of the many exemptions that are open to them. The documentation requirement is minimal. We’re going to depend mainly on the documentation submitted in the first phase.
Q: In what cases might additional documentation be necessary?
A: The area we’re concentrating on is absences from the United States. Applicants would need something to show the beginning and end of their trip outside the country, such as rent receipts, airplane or bus tickets, showing that they weren’t out for more than 30 days.
Q: Let’s say I overstayed the 30-day limit on a single absence outside the country, or exceeded the total 90-day limit. Do I have any recourse?
A: If it was for an emergency circumstance, you’re not going to have any problem. Other situations would be handled on a case-by-case basis. But there are ways around it, depending on the circumstances and reasons for the absence.
Q: How do you fulfill the requirement that calls for economic self-sufficiency? Do you have to prove once again, as was required in Phase 1, that you will not become a public charge?
A: No. You don’t have to do anything to further prove that you will not become a public charge. You would not have received temporary residence had you not been able to satisfy the public charge test. If you submitted a public charge waiver in Phase 1, however, then you may be required to show that you have remained free of public assistance and are self-sustaining. But Phase 2 interviews are a lot less intensive than Phase 1.
Q: Is an HIV medical test for AIDS required?
A: If you didn’t have an HIV test when you submitted you medical exam during Phase 1, then you need to have the test done now. As of Dec. 1, 1987, people were required to file the test result with their medical exam. Anyone who filed before that date, however, was not required to file the HIV test result and, therefore, would be required to submit it when they file their Phase 2 application.
Q: What happens if the AIDS test result is positive?
A: There is a waiver available. The fact that somebody tests positive doesn’t necessarily mean they are going to be excluded from achieving permanent residence. Waiver forms are available at the Legalization Offices.
Q: Do I have to pay back taxes in order to apply for permanent residence?
A: Not as far as we’re concerned. There is no requirement that applicants show any evidence that back taxes have been paid. It’s not a condition of Phase 2 permanent residence. The IRS (Internal Revenue Service) may require them to look at paying back taxes, but that’s the IRS, not us.
Q: What if my wife or kids did not qualify for amnesty?
A: It would have to be reviewed and would be handled on a case-by-case basis. Basically, if a family doesn’t qualify, there’s not that much that can be done to give them permanent residence. There’s no way for us to unilaterally grant them permanent residence. There may be a means of granting extended voluntary departure so that families are not split up until their cases can be resolved by other means.
Q: What options are available to people who did not qualify for amnesty?
A: If you were issued a denial by the (INS) Regional Processing Facility, the first step is an appeal to the Legalization Appeals Unit in Washington. Their decision is final, there is no other appeal.
If an immediate family member does not qualify for amnesty, you can petition for them to immigrate. Permanent residents can petition for spouse and children. Five years down the road, once you become a citizen, you can petition for parents, brothers and sisters, married sons and daughters.
Q: Since the permanent resident applications are all in English, who can help me fill one out if I don’t speak the language?
A: You can go to whomever helped you originally with your Phase 1 application. You can go to community-based organizations, qualified designated entities (QDEs) in good standing, the church in some instances, even friends.
Q: What are my options for fulfilling the requirement for a basic knowledge of English, U.S. history and government?
A: First, there are exemptions by virtue of age. If you’re 65 or over, or under the age of 16, you are not required to fulfill the educational requirement. If you’re 50 and have resided 20 years in the United States, you are also exempt. If you have attended one year at a state-accredited school you’re exempt, or if you have a high school or (equivalent) diploma.
We understand, by some estimates, that maybe 30% of the total pool of applicants will need to take the 60-hour course of instruction, or at least 40 hours of it to complete what we call “successful pursuit.”
If a person has had no education, has only a minimal understanding and speaking ability with respect to the English language, then they’re probably going to have to take that course.
But if they have attended some school and they have survival skills in English, then I would recommend that they take an exam, which will exempt them from any further educational requirements for Phase 2 permanent residence.
Q: What exams are available?
A: There are basically two types of tests that can be taken. One is the “proficiency” examination; the other is called the standard 312 or citizenship exam, which also relieves you of any further testing when you petition for citizenship five years down the road.
The citizenship test can be taken at the time of the INS interview. If you fail it, they’ll reschedule you six months later for another test--even if it’s beyond your one-year window--unless there’s a mutual agreement between both parties for an earlier test date. You get only two tries.
This test can also be taken through ETS (Educational Testing Service) prior to the interview. To take it, you have to call the NALEO (National Assn. of Latino Elected Officials) hot line--(800) 346-2536--and make an appointment through them.
The second test--the proficiency exam--we developed out of concern that there might not be enough classroom space for those applicants who really need it. We saw an opportunity to develop something slightly easier than the 312-citizenship exam that would meet the requirements contained in the 60-hour course of instruction.
Q: Where and how many times may I take the proficiency exam?
A: You can take this test as often as you want. It is available by appointment at all Legalization Offices on Thursday nights and will be more widely available, after March 2, at other places, including QDEs and state Department of Education facilities willing to contract with INS to administer it. The test consists of 15 questions and you must get nine of them correct to pass.
Those who take the proficiency exam will be required, five years down the road when they petition for citizenship, to take the standard citizenship test at that time.
There is no need for people who can pass one of the tests to sit in that 60-hour course.
Q: If I want to take one of the tests without taking classes, how can I prepare myself?
A: Pick up a copy of a list of 100 (citizenship exam) questions available at the Legalization Offices. If you memorize the answers, you will pass either the citizenship or proficiency test. The one thing that separates the proficiency test from the citizenship exam is that it covers a lot of life skill questions--things you should have picked up just by living in the United States, like what you need to drive a car.
We’re also in the process of designing a study guide that we hope to have available by mid-March.
The standard citizenship textbooks can be picked up at public libraries or purchased at the Government Printing Office. There are also videotapes available. One is being broadcast over KMEX.
Q: If I choose to take the classes, how can I tell if a school is INS-approved to offer the required course?
A: You can get a list of certified schools at the Legalization Offices or ask to see the school’s I-804A certificate, signed by the INS Western Regional Commissioner Harold Ezell and Los Angeles District Director Ernest Gustafson.
Q: Those who applied for amnesty under the Special Agricultural Workers program are exempted from taking classes or a test. How else does the amnesty process differ for them?
A: None of these requirements apply to them. Once they’ve gone through one year to 18 months of temporary residence, approval for permanent residence is automatic. We’ll have them come into a Legalization Office and get photographs and fingerprints and fill out a form so that we can mail them their card. There is no application and there is no fee.
Q: Which benefits may temporary residents receive without jeopardizing their application for permanent residence?
A: Anything that would result in the receipt of cash would be a problem, but will be handled on an individual basis. General welfare is the one that would give applicants the most trouble. There are some housing programs that result in public cash assistance that could be a problem. AFDC (Aid to Families with Dependent Children) is only a problem if it’s the sole source of family income. U.S. citizen children are entitled to it and if the family has other income, it shouldn’t be a problem. Medi-Cal, food stamps, student aid are not disqualifiers. We’re frightened of people not getting necessary medical care because they’re afraid it will disqualify them.
What we fear most is people disqualifying themselves. If they have a question about the type of assistance that they’ve been receiving, let them come to the Legalization Office, let them go to some sort of legal aid assistance and work that out. Don’t disqualify yourself, because if you’ve made it this far, the likelihood is very good that you’re going to get through the rest of it.
