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The Illegal Immigration Reform and Immigrant Responsibility Act of 1996

Written by Henry J. Chang

The enactment of the Illegal Immigration Reform and Immigrant Responsibility Act of 1996 ("IIRIRA"), on September 30, 1996, resulted in significant changes to existing U.S. immigration laws. Although IIRIRA was promoted as an illegal immigration bill, it's far reaching provisions have had a serious impact on legal immigration as well. While this is not intended to be a section-by-section summary of IIRIRA, some of the most important provisions are discussed below:

Section 110 - Automated Entry/Exit Control System

Requires the Attorney General to develop, by September 30, 1998, a system that will:

  1. collect a record of departure for every alien departing the U.S. and match the record against the record of the alien’s arrival; and

  2. allow the identification of nonimmigrants who remain beyond their period of authorized stay.

Section 110 will cause extreme delays at already congested land and sea ports of entry. With billions of dollars in good crossing the border each day, this congestion would have a devastating impact on U.S. trade, discourage incoming tourism and, in turn have a serious impact on U.S. jobs, communities, and the economy as a whole.

Section 110 would also not curb the problem of visa overstays. It may produce a database of nonimmigrant overstayers, but since it will not indicate where these overstayers may be found, Section 110 will not lead to further apprehensions or removals. The implementation of Section 110 would also require enormous amounts of new resources (the INS estimates $2-3 billion in infrastructure costs, not to mention operating costs.)

In response to the above concerns, Gerald Solomon (R-NY) introduced H.R. 2920, which would postpone the application of Section 110 at land ports of entry by one year, until September 30, 1999. It was passed by the House of Representatives on November 10, 1997 but has not been considered by the Senate. However, H.R. 2920 does not deal with the impact of Section 110's full implementation; it merely delays its implementation by one year.

A more detailed response to Section 110 appears in S. 1360, which was introduced by Spencer Abraham (R-MI) which will prevent Section 110 from being applied at land borders until a feasibility study can be performed. New provisions were later added to the bill to exempt seaports from the application of Section 110 and to authorize additional personnel and high-tech equipment for INS and Customs to improve the flow of traffic at congested borders. In August 1998, the Senate passed S.1360, referred to as "The Border Improvement and Immigration Act".

John LaFalce (D-NY) also introduced a companion bill to S.1360 (known as H.R. 2955) in the House of Representatives. However, it has not been passed by the House.

The Commerce, Justice, and State ("CJS") Appropriations bill for Fiscal Year 1999, passed by the Senate, contains a provision to repeal Section 110. However, the companion bill passed by the House did not contain this provision.

The INS previously stated that it would not be able to implement the entry-exit control system on the October 1, 1998, because it lacks the resources to do so.

On October 21, 1998, the President signed the Omnibus Appropriations Bill (H.R. 4328) into law. The bill delays implementation of Section 110 at land borders and sea ports until March 30, 2001. It also requires that the system implemented at land borders will not significantly disrupt trade, tourism, or other legitimate cross-border traffic.

Both the House and the Senate recently introduced bills that would repeal Section 110 of IIRIRA. Senator Spencer Abraham (R-MI), who championed this issue last year, introduced the "Border Improvement and Immigration Act of 1999" (S.745) on on March 23, 1999. Representative John LaFalce (D-NY) and 14 House co-sponsors introduced the "Border Improvement and Immigration Act of 1999" (H.R.1250) on March 23, 1999, which is identical to S.745.

NOTICE: On June 15, President Clinton signed into law H.R. 4489, the INS Data Management Improvement Act (Public Law No. 106-215). Passage of this law represents the first positive reform of IIRIRA since its enactment in 1996 and the first major defeat on this issue for Representative Lamar Smith (R-TX). This law effectively replaces Section 110 of IIRIRA, which would have required the INS to create and implement new automated entry and exit controls at all ports of entry. The new law instead mandates that the INS create a centralized database to organize and coordinate entry and exit data currently collected at ports of entry. The bill also creates a new public-private task force that will review the system and current border practices and provide recommendations for improvements.

Section 301 - Exclusion of Previously Removed Aliens

Aliens Unlawfully Present

Section 301 creates bars to admissibility for aliens who were “unlawfully present” (i.e., overstayed a visa or entered without inspection and were therefore neither admitted nor paroled). According to INA §212(a)(9)(B)(i)(I), an alien unlawfully present for more than 180 days but less than one year, and who left the United States voluntarily before removal proceedings began, is inadmissible for three years from date of departure. According to INA §212(a)(9)(B)(i)(II), an alien unlawfully present for one year or more is inadmissible for 10 years from the date of departure. Additional information relating to the three and ten year bars appears here. Periods of unlawful presence prior to April 1, 1997 are not counted.

Certain Aliens Previously Removed

Section 301 amends INA §212(a)(9)(A) by increasing the periods of inadmissibility for persons previously excluded or deported.

INA §212(a)(9)(A) creates a 5-year bar to admissibility for an alien excluded under INA §235(b)(1) (expedited removal) or "at the end" of INA §240 removal proceedings that were initiated upon the alien’s arrival (previously referred to as exclusion proceedings). The bar is 20 years for a second or subsequent removal and permanent for aliens convicted of any aggravated felony. Prior to IIRIRA, the bar for exclusion was only one year, unless the person was convicted of an aggravated felony, in which case it was 20 years.

INA §212(a)(9)(A) also creates a 10-year bar to admissibility for aliens otherwise ordered removed or who have departed the United States while an order of removal is outstanding. This bar also is 20 years for a second or subsequent removal and permanent for a person convicted of an aggravated felony. Prior to IIRIRA, the bar for deportation was only five years, unless the person was convicted of an aggravated felony, in which case it was 20 years.

These bars can be waived if the Attorney General gives prior consent to the alien's reapplication for admission.

These increased periods become effective on April 1, 1997. They apply even where the alien was excluded or deported prior to April 1, 1997. Therefore, an alien who was excluded for one year in 1995 under the old law will find himself or herself barred again on April 1, 1997 until a period of five years have elapsed since the exclusion or deportation occurred.

Aliens Unlawfully Present After Previous Immigration Violations

Section 301 also creates INA §212(a)(9)(C), which imposes a permanent bar to admission for aliens who were unlawfully present for an aggregate period of more than one year or who have been ordered removed, and who subsequently enter or attempt to enter the United States without being lawfully admitted. If the Attorney General gives prior consent to the alien’s reapplication for admission, the alien can be admitted after 10 years. This bar is effective as of April 1, 1997.

Section 302 - Expedited Removal of Inadmissible Arriving Aliens

Amends INA §235 to provide for the expedited exclusion (contained in INA §235(b)(1)), without a hearing or right of appeal, of aliens who are inadmissible under either INA §212(a)(6)(C) (fraud or misrepresentation) or INA §212(a)(7) (lack of documentation), unless they indicate a credible fear of persecution or an intention to apply for asylum. Expedited removal can only be used when the alien is believed to be excludable under these grounds.

The INS regulations at 8 CFR 235.3(b)(2)(1) appear to exempt from expedited removal (at least on the grounds of INA §212(a)(7)) an alien for whom documentary requirements are waived under §211.1(b)(3) or §212.1". §211.1(b)(3) refers to a waiver filed by an immigrant alien returning to an unrelinquished lawful permanent residence in the United States after a temporary absence abroad, who believes that good cause exists for his or her failure to present an immigrant visa, Form I-551, or reentry permit. §212.1 lists several visa and passport exempt groups. This includes a provision relating to Canadians and landed immigrants with common nationality with Canadian citizens, which is reproduced here.

While wording of the regulation does not appear to limit the exemption to INA §212(a)(7) situations, the INS takes the position that such aliens are still be subject to expedited removal on the grounds of INA §212(a)(6)(C). It has already imposed expedited removal on hundreds of Canadians on that basis.

The INS appears to take the position that expedited removal does not apply at pre-flight inspection stations in foreign airports. This appears to be based on the fact that pre-flight inspection is not technically a port-of-entry and the alien is not "arriving in the United States." The INS regulations contained at 8 CFR §235.3(b)(1)(i) make reference to arriving aliens as defined in 8 CFR §1.1(q). 8 CFR §1.1(q) makes reference to "an alien who seeks admission to or transit through the United States, as provided in 8 CFR 235, at a port of entry...".

Expedited removal also applies, at the Attorney General's "sole and unreviewable discretion", to an alien already present in the United States if that alien was not admitted or paroled and cannot establish continuous presence in the United States for the two prior years. This essentially permits the INS to override the rule that aliens who have succeeded in entering the United States may not be deported except under procedures that comply with due process.

Expedited removal became effective on April 1, 1997.

Section 341 - Proof of Vaccination Requirement for Immigrants

Section 341 imposes a vaccination requirement for immigrants (but not nonimmigrants), which appears at INA §212(a)(1)(A)(ii). The vaccination requirement applies to applications for immigrant visas or adjustment of status filed after September 30, 1996.

The section makes inadmissible any intending immigrant who does not present evidence of vaccination against certain diseases, including mumps, measles, rubella, polio, tetanus and diphtheria toxoids, pertussis, influenza type B, and hepatitis B. Certain waivers are available.

Additional information concerning the vaccination requirement appears here.

Section 343 - Certification Requirements for Foreign Health Care Workers

Section 343 renders aliens seeking admission for employment as health-care workers (other than as a physician) excludable, unless the alien presents credentials verifying the alien's training, licensing, and experience and also competency in English. This section became effective on September 30, 1996.

Additional information concerning the certification requirement for foreign health care workers appears here.

Section 344 - Removal of Aliens Falsely Claiming U.S. Citizenship

Section 344 creates a new ground of excludability and deportability (INA §212(a)(6)(C)(ii) and INA §241(a)(3)(D), respectively) for an alien who falsely represents himself or herself as a U.S. citizens for any purpose or benefit under any federal or state law. The new ground applies to representations made on or after September 30, 1996.

Section 346 - Inadmissibility of Certain Student Visa Abusers

Section 346 makes inadmissible any alien who violates new INA §214(l) (discussed in Section 625 of IIRIRA), for a period of five years. Applies to aliens who obtain nonimmigrant F-1 student status after November 29, 1996, including aliens whose status is extended after November 29, 1996.

Additional information relating to INA §214(l) appears here.

Section 625 - Restriction on Foreign Students

Section 625 amends INA §214 to bar F–1 status for an alien who seeks to attend a public elementary school or a public adult education program. Entry to attend a public secondary school is also not permitted, unless:

  1. the aggregate period of F–1 status does not exceed a year; and

  2. the alien reimburses the school for the costs of providing education.

An alien who obtains an F–1 visa to attend a private school and then transfers to a public school (including publicly-funded adult education programs or adult education language training programs but subject to the above exception for public secondary school), is deemed to have violated F–1 status.

This section applies to individuals who obtain F–1 student status after the end of the 60-day period beginning on the date of enactment (around December 1, 1996), and includes aliens whose status is extended after that period.

Additional information relating to this F-1 bar appears in our F-1 student article.

Section 347 - Removal of Aliens Who Have Unlawfully Voted

Section 347 makes aliens who have unlawfully voted in violation of any Federal, State, or local constitutional provision, statute, ordinance, or regulation is both excludable and deportable (under INA §212(a)(10)(D) and INA §241(a)(6), respectively).

This provision applies to unlawful voting that occurs before, on or after September 30, 1996.

Section 349 - Waiver of Misrepresentation Ground of Inadmissibility for Certain Aliens

Amends the waiver contained in INA §212(i) (which waives the ground of exclusion for fraudulent or material misrepresentations contained in INA §212(a)(6)(C)(i)) by making it more restrictive. A waiver is now permitted only in the case of an immigrant who is the spouse, son or daughter or a United States citizen or of an immigrant lawfully admitted for permanent residence if it is established to the satisfaction of the Attorney General that the refusal of admission would result in extreme hardship to the citizen or lawfully resident spouse or parent of such an alien. No court shall have jurisdiction to review a decision or action of the Attorney General regarding such a waiver.

This provision became effective on September 30, 1996.

Section 352 - Exclusion of Former Citizens who Renounced Citizenship to Avoid U.S. Taxation

Section 352 creates the new INA §212(a)(10)(E), which renders excludable persons who renounce citizenship to avoid U.S. taxation. This ground is effective against citizens who renounce U.S. citizenship on or after September 30, 1996.

Section 531 - Public Charge Ground of Exclusion

Section 531 amends INA §212(a)(4). The amended version now sets forth factors for the consular or INS officer to consider in determining an alien's likelihood of becoming a public charge. This essentially codifies existing consular practice. According to Section 531, consular officers may consider (a) age; (b) health; (c) family status; (d) assets, resources, and financial status; and (e) education and skills. The new affidavit of support (discussed in Section 551 of IIRIRA) may also be considered.

Section 531 also requires that virtually all persons immigrating through family-based immigration are excludable unless the petitioner submits a new legally binding affidavit of support. The affidavit of support is also required for certain employment-based immigration cases where the petition is filed by a relative of the alien (or by an entity in which such relative has a significant ownership interest). The required affidavit of support is described in Section 551 of IIRIRA.

According to Section 531, the amendment to INA §212(a)(4) was to apply to applications submitted on or after the effective date, which would be not earlier than 30 days and not later than 60 days after the date the Attorney General promulgated the new affidavit of support. All adjustment of status cases filed, and consular cases involving a signed Form OF-230 Part I filed, after December 19, 1997 are now subject to the affidavit of support requirement.

Additional information relating to the new public charge of exclusion appears here.

Section 551 - Requirements for Sponsor’s Affidavit of Support

According to Section 551, the new affidavits of support may not be accepted to overcome the public charge ground of exclusion unless they are legally enforceable against the person who signs the affidavit (the "sponsor"). The affidavit must bind the sponsor to maintain the sponsored alien at an income level of at least 125 percent of the federal poverty line. The affidavit must continue to be enforceable against the sponsor until the alien has become a U.S. citizen or until the alien has been credited for 40 qualifying quarters of work (essentially 10 years), whichever comes first.

Sponsors must be at least 18 years old, domiciled in the United States, and able to support both the sponsor's and the immigrant's families at 125% of the federal poverty guideline. An exception is made for active duty service members petitioning for their spouse or child, who may qualify if able to support themselves and the sponsored immigrant at 100% of the poverty guideline. Sponsors are required to notify the INS if their address changes.

The person petitioning for admission of his or her relative must be a sponsor. However, if the petitioner does not meet the 125 percent minimum income requirement, he or she may find another individual who is willing to accept joint and severable liability with the petitioner. A second affidavit of support will be required from the co-sponsor.

As stated above, the new affidavit of support (Form I-864) became a requirement on December 19, 1997. All adjustment of status cases filed, and consular cases involving a signed Form OF-230 Part I filed, after December 19, 1997 are now subject to the affidavit of support requirement.

Additional information relating to the new affidavit of support appears in our family-based immigration article.

Section 632 - Elimination of Consulate Shopping for Visa Overstays

Section 632 amends INA §222(g) to eliminate consular shopping if the alien remains in the United States longer than his or her period of authorized stay. It also clarifies that a nonimmigrant visa is void as soon as the nonimmigrant alien overstays. The alien is then ineligible to be readmitted as a nonimmigrant except on the basis of a visa issued by the post in the alien's home country, unless "extraordinary circumstances" exist. INA §222(g) applies to any alien applying for readmission after September 30, 1996, except for an alien applying for readmission based on a visa issued before that date.

Additional information relating to INA §222(g) appears in our article on consular processing.

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