While many individuals anxiously await immigration reform under Barack Obama’s presidency in 2009, some may already qualify for legalization under the 1986 immigration reform law (amnesty).

A recent settlement has opened up legalization eligibility, bringing early Christmas cheer to those who qualify. The settlement relates to the 1986 Immigration Reform and Control Act. Under this law, certain individuals who entered the United States and were in violation of their immigration status prior to January 1, 1982, may be eligible for legalization. The recent landmark settlement stems from a class action lawsuit filed on behalf of undocumented immigrants and was approved in September of 2008 by a U.S. District Court in the State of Washington.

To qualify for the 1986 legalization program, applicants must meet several requirements, including: 1) Continuous residence in the United States in an unlawful status from before January 1, 1982 until May 4, 1988; 2) No absence from the U.S. for more than 45 days on any one trip and 180 days total since January 1, 1982 unless the return could not be accomplished due to emergent reasons; 3) No more than two misdemeanors and no felony criminal conviction; and 4) The unlawful status must have been known to the government.

The “known to the government” requirement was put in place due to Congress’ concern that individuals who entered the U.S. with a valid visa would contend that they violated their legal status only to qualify for amnesty. It is due to this concern that Congress created the rule requiring applicants show that their transition from legal to illegal status was “known to the government”. This notice requirement is not limited to Immigration Authorities’ knowledge of the applicant’s status violation, it includes other agencies such as the Internal Revenue Service or the Social Security Administration.

For many years, the problem of proving the government had knowledge that an individual was out of status seriously complicated the prospects of those who otherwise qualified for legalization. Many applicants were rejected because they could not meet the heavy burden of proving that the U.S. government knew that they were out of status.

The recent landmark District Court settlement will benefit such individuals. The settlement addresses two specific instances where it is presumed that the government knew that an individual was out of status:

1) If an individual was in the U.S. as a student, but stopped attending classes, the school was under a legal obligation to inform the government of the student’s unlawful status. However, many schools cannot prove that they informed the government. The settlement states that even if the school cannot later prove that they informed the government, it is presumed that the school did and, therefore, the government is charged with knowledge of the student’s unlawful status. 

2) If an individual did not provide the government with an address report every three months as required by law, the settlement is also beneficial. If the government cannot produce the documents showing the address updates, then it is presumed that the individual did not provide the address update and, thus, fell out of lawful status.

With an easing of the burden on applicants of proving the notification requirement, thousands more immigrants may join the 2.7 million which, to date, have benefited from the legalization provided under the Immigration Reform and Control Act. Applicants must remember that this settlement offers a limited, one-year time period for those eligible to file for amnesty. United States Citizenship and Immigration Services will begin accepting applications starting February 1, 2009, and individuals have until January 31, 2010, to file.

As immigration laws become more and more restrictive, no qualified applicant should let an opportunity go by without applying for relief for which they may be eligible. Applicants who think they are eligible for relief as a result of the recent settlement should seek assistance from an experienced immigration attorney.

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Author's Note: The analysis and suggestions offered in this column do not create a lawyer-client relationship and are not a substitute for the individual legal research and personalized representation that is essential to every case.

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