A blog about U.S. immigration matters by Paul Szeto, a former INS attorney and an experienced immigration attorney and counsel. Contact Info: 732-632-9888, http://www.1visa1.com/ (All information is not legal advice and is subject to change without prior notice.)

Monday, May 2, 2011

It’s time to bring back Section 245(i)

It may be hard to believe, but April 30 marked the 10th anniversary of the sunset date of Section 245(i) of the Immigration and nationality Act – a law that has changed the lives of tens of thousands of people in the United States by allowing them to be legalized. 


In order for a foreign national to adjust their status to that of a lawful permanent resident, she must meet a number of conditions and requirements in the legal process called adjustment of status. Congress passed Section 245(i) to allow foreigners to adjust their status even though they did not meet all the conditions and requirements. For examples, foreigners who had worked without authorization or who had failed to maintain their legal status were not eligible to apply for adjustment of status before Section 245(i) was signed into law. Section 245(i) began effective on October 1, 1994 and was initially scheduled to expire on January 14, 1998. The LIFE Act amendment extended the deadline or “sunset date” to April 30, 2001. Eligible applicants must pay a penalty fee of $1000 in addition to the regular filing fees.
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The significance of Section 245(i) is that a foreigner may preserve his eligibility by virtue of an immigrant visa petition filed on or before April 30, 2001, and use it to apply for adjustment in the future based on an unrelated immigrant visa petition. A large of number of applicants were able to take advantage of the law by means of an immigrant visa petition filed by a family member or an employer before the sunset date. They are considered “grandfathered” for 245(i) benefits. However, for those who missed the sunset date, they can only hope that 245(i) is extended again by Congress.

Over the past decade, there have been proposals to bring back 245(i) to life. For example, after a meeting between U.S. President, George W. Bush, and Mexican President, Vicente Fox, on March 22, 2002, the House of Representatives passed a bill extending section 245(i) to November 30, 2002. Unfortunately, none of these proposals was eventually passed by Congress and became law. There has been strong opposition to passing any law that would legalize a large of foreign nationals by the restrictionists. Their voice were particular strong during the last few years when the U.S. was suffering from one of the worst economic downturns since the Great Depression. In fact, since 2001, our immigration policy can be characterized as one of strong enforcement but not comprehensive reform. For instance, when Republicans controlled both House and Senate and also the White House, the 108th Congress passed the Real ID Act which added strong enforcement provisions in the law. In the more recent years, when Democrats controlled both the House and Senate, the situation did not change much. For example, when the Dream Act was proposed, it was welcome by almost all groups of political voices including many restrictionists. At the end, however, it still failed to pass the Senate.

The debate over our immigration policies will continue for years to come. The prospect of Congress adopting Comprehensive Immigration Reform (CIR) may not great in the next few years. The question remains: how do we deal with the millions of foreigners who are already living in the U.S. without legal status? We are certainly not ready to remove them on a massive scale. Some of them actually have extensive family ties here including USC spouses and children. Bringing back Section 245(i) may be a good compromise. On the one hand, it is not an amnesty that is opposed by the conservatives. It is only an extension of an existing provision of the law. The USCIS has both internal protocols and adjudication experience for processing 245(i) cases. It does not excuse criminal offenses or serious immigration violations. On the other, Section 245(i) fosters family relationships and generates additional revenues for the government – both are important to our country. It should not be too difficult for the legislators to explain the benefits of 245(i) to their constituents. Hence, after Section 245(i) has been sunset for 10 years, it may be the right time to bring it back.

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