Foreigners who misused their visas can't enter amnesty door. Many find fault with immigration law and take their case to court

For Maria Garcia, four words mean the difference between US citizenship and illegality. Those words are ``known to the government,'' and they are the basis of two lawsuits representing 30,000 to 50,000 illegal aliens. One, covering the Eastern and Northern parts of the country, was filed last week; the other, covering the rest of the US, will likely be filed this week.

The case of Ms. Garcia (not her real name) is typical of thousands who came to the United States as students, embassy employees, or people working at international organizations like the World Bank. She came in the early 1970s to earn her master's degree. After graduation, she took a full-time, professional job - in violation of her student visa. Today, she is employed full time and working on her PhD.

Under the 1986 amnesty law, aliens who have been living in the US illegally since before Jan. 1, 1982, may remain and eventually become citizens if they apply to the Immigration and Naturalization Service (INS) by May 5. They can prove their residence by showing items such as canceled checks for utility bills.

But the required proof is different for those who first entered this country legally and then misused their visas. They must prove that their later illegal residence was ``known to the government'' - not just documented through household bills.

Maria can prove her illegal status. Ever since she began work, she has paid income and social security taxes, and has kept the records. Her illegal status was known to both the Internal Revenue Service and the Social Security Administration.

The INS, however, says that the ``government'' means the INS, and not any other branch. ``They want it both ways,'' says Duke Austin, an INS spokesman. ``If we had stopped them on the street, they would have pulled out their visas and said, `Hey, I'm legal.' Now they want to say they've been illegal.''

But lawyers for the aliens say that interpretation is too narrow, and in September, a federal district court agreed with their reasoning. In this case, Farzad v. Chandler, the judge ruled that ``the government'' should ``at least include the Internal Revenue Service and Social Security Administration.''

The INS is appealing the decision. Meanwhile, it has not changed its practices to allow the broader interpretation, since the ruling applied only to that person, says Deborah Ann Sanders, an attorney at the Washington Lawyers' Committee, a co-counsel in the case filed last week.

``We've noticed in the appeals decisions, the INS has said, go ahead and deny these, so they obviously aren't following Farzad,'' she says.

With less than seven weeks left before amnesty ends, the plaintiffs are asking for a preliminary injunction so they won't be deported until the ``government'' definition is decided. Failing that, they want an expedited trial.

Even if they win their case against the INS, however, something else may trip up these aliens in limbo: ignorance. Ms. Sanders says they should file for legalization with the INS, in case the judge rules that only those who have filed by May 5 are eligible for legalization under the broader language.

She points out that even though they would file with the INS, their records are kept confidential, and cannot be handed over for deportation.

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