The U.S. House of Representatives voted to extend Section 245(i) of the Immigration and Naturalization Act. This provision, if made into law, is not a new avenue to obtain permanent residence. Rather, it is a procedural change that helps those foreign nationals who are in the U.S. without legal status AND who otherwise qualify for permanent residence through family or employer sponsorship. 245(i) permits such persons to complete the entire green card process without having to leave the United States. This is important because current law requires these persons to travel to U.S. consulates for the final phase of the green card process. In doing so, they become subject to 3 and 10 year bars, prohibiting their return.
By a vote of 275 to 137, the House of Representatives on March 12 passed a very limited extension of Section 245(i) as part of the Enhanced Border Security bill (H.Res 365). It is unclear if and when the Senate will take up this measure. AILA believes that this Section 245(i) extension is a positive gesture, but has pointed out its defects (noted below), and has urged the Administration and Congress to develop an effective and affirmative adjustment provision, especially in the context of the U.S. Mexico discussions.
Section 245(i) is a vitally important provision that would allow eligible people to adjust in this country. By pushing for this extension, both the Administration and Congress recognize that Section 245(i) is pro-family, pro-business, good policy and makes sense. Not surprisingly, restrictionists strongly opposed any extension, alleging (inaccurately) that it is an amnesty, and recognizing (accurately) that a Section 245(i) vote demonstrates both the Administration's and Members of Congress support for an important immigration issue and that they control neither the Administration nor Congress. They thus view any extension of Section 245(i) as a defeat. And well they should.
This extension measure is a positive, but very flawed, gesture. It is positive because it helps to move forward a pro-immigration issue. It is flawed because it includes very restrictive language that will significantly limit its benefits. While this extension proposal appears to extend Section 245(i) until November 30, 2002, many people will not qualify because of the additional requirement that eligibility for Section 245(i) be established prior to August 15, 2001. For people who are submitting a family-based application, the new provision would require that the "familial relationship that is the basis of the application" existed before August 15, 2001. This completely arbitrary date will prevent many families from benefiting from this new law.
For people who are submitting an employment-based application, they would have to prove that a labor certification was submitted prior to August 15, 2001. The requirement that an application have been previously filed will render this extension almost meaningless for employment-based applications. Since Section 245(i) had previously expired, it would have made no sense for an employer to submit a labor application on behalf of an employee who needed Section 245(i) at a time when the program did not exist.
The August 15, 2001 provision is unnecessary given the requirement that the principal beneficiaries of these petitions and applications must have been physically present in the U.S. on December 21, 2000, the date of enactment of the LIFE Act Amendments of 2000. The purpose of this last requirement is to make sure that the renewed availability of Section 245(i) does not operate to encourage anyone to violate our immigration laws
The proposed Section 245(i) extension measure is further complicated by the short extension period. The new law either extends Section 245(i) until November 30, 2002, or four months after the INS issues regulations implementing this law, whichever is earliest. (And new regulations would have to be issued, given the new August 15 date.) This short extension will lead to much confusion in communities nationwide about when people must apply and who is eligible.
