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  • 245(I)

    THE ISSUE: Section 245(i) is a vital provision of U.S. immigration law, allowing eligible immigrants on the brink of becoming permanent residents to apply for their green cards in the United States, rather than returning to their home countries to apply. Section 245(i) is available to immigrants residing in the U.S. who are sponsored by close family members, or by employers who cannot find necessary U.S. workers, and on whose behalf petitions were submitted prior to April 30, 2001. Immigrants applying for permanent residence under Section 245(i) are eligible for their green cards, but without Section 245(i), are unable to obtain them in the U.S. because they are not in a legal nonimmigrant status. (This can happen due to a technical visa problem, or because of INS delays. It can happen without the immigrant's knowledge.) People applying under Section 245(i) are screened for criminal offenses, health problems, the potential of becoming a public charge, fraud, misrepresentation, and all other grounds of inadmissibility. Each applicant has to pay a $1,000 processing fee, thereby generating revenue for the INS - at no cost to taxpayers.

    The issue is not whether these individuals are eligible to become permanent residents - they already are. The issue is the location from which they are eligible to apply.

    BACKGROUND: Congress allowed Section 245(i) to expire in November 1997, while also providing relief for some immigrants already in the United States. The "sunset" provision adopted at that time covered only those immigrants who were eligible for permanent resident status, and who had filed preliminary paperwork with the INS and/or the Department of Labor (DOL) before January 14, 1998.

    Several bipartisan measures were introduced in the 106th Congress that would have permanently restored Section 245(i). Instead of a full restoration, however, the LIFE Act that was passed and signed into law in December 2000 temporarily reinstated Section 245(i) from January 14, 1998 until April 30, 2001. Since the LIFE Act provided a short, four-month opportunity for eligible people to apply and the INS did not issue regulations implementing the extension until late March of 2001, thousands of eligible applicants were unable to submit their application by the deadline. As a result, Congress and President Bush have made it clear that an extension is necessary.

    In the 107th Congress, several bipartisan extension measures have been introduced. In the Senate, Senator Chuck Hagel (R-NE) and Edward Kennedy (D-MA) introduced S. 778, which would have extended the Section 245(i) deadline for one year, giving people sufficient time and opportunity to submit their applications to obtain permanent residency. Despite strong bipartisan support, the bill was amended to require beneficiaries to demonstrate that the "familial or employment relationship" that formed the basis for the application existed prior to the enactment of this proposed legislation. The House-passed extension, H.R. 1885, would extend the Section 245(i) deadline for only four months, while also requiring beneficiaries to demonstrate that the required "familial or employment relationship" existed on or before April 30, 2001.

    In early September, the Senate took H.R. 1885 and amended it to include the compromise noted above. House leadership agreed to this compromise, and was set to vote on the bill the morning of September 11. However, the vote was not held due to the terrorist attacks. Under H.R. 1885 as amended, any immigrant petitions filed before either April 30, 2002, or four months after regulations are issued (the bill's language is unclear as to whether it is the earlier or the later of these two dates), would form the basis for Section 245(i) eligibility. However, those who file after April 30, 2001 must demonstrate that the "familial relationship" existed before August 15, 2001, or that the application for labor certification that is the basis of such petition for classification was filed before August 15, 2001. Thus, for family cases, the family relationship must have existed before August 15, 2001. This means that the Section 245(i) extension would not be applicable to marriage-based petitions where the marriage was not entered into before August 15, 2001. For employment cases based on labor certifications, the labor certification application must have been filed by August 15, 2001. This means that the Section 245(i) extension would not be applicable to new labor certification applications not filed before that date. Such a restriction essentially ends the extension of Section 245(i) for most business-based applications because most would not have filed an application for a program that did not exist.

    Despite support by the Bush Administration, the INS, and many members of Congress from both parties, Congress has yet to pass an extension of Section 245(i).


    AILA's POSITION: AILA strongly supports the extension and permanent restoration of Section 245(i). Immigrants on the brink of becoming permanent legal residents should be able to file their green card applications from within the United States, rather than having to travel back to their home countries and possibly face draconian consequences that would prevent them from returning to America for years. Without Section 245(i), people fully eligible for green cards can be barred from returning to the United States for three or ten years.

    Restoring Section 245(i) is pro-family, pro-business, fiscally prudent, and a matter of common sense. Section 245(i) allows immigrants with close family members here in the United States to remain with their families while applying for legal permanent residence; allows businesses to retain valuable employees; and provides INS with millions in annual revenue, at no cost to taxpayers. For the period of time the INS was without Section 245(i), the agency suffered major deficits in its adjudication funding, resulting in backlogs in all types of applications, including naturalization and immigrant visa petitions. The State Department (whose consular posts have to process these cases in the absence of Section 245(i)) already are understaffed and under-funded for this task. AILA urges Congress to fully restore Section 245(i).

  • #2
    THE ISSUE: Section 245(i) is a vital provision of U.S. immigration law, allowing eligible immigrants on the brink of becoming permanent residents to apply for their green cards in the United States, rather than returning to their home countries to apply. Section 245(i) is available to immigrants residing in the U.S. who are sponsored by close family members, or by employers who cannot find necessary U.S. workers, and on whose behalf petitions were submitted prior to April 30, 2001. Immigrants applying for permanent residence under Section 245(i) are eligible for their green cards, but without Section 245(i), are unable to obtain them in the U.S. because they are not in a legal nonimmigrant status. (This can happen due to a technical visa problem, or because of INS delays. It can happen without the immigrant's knowledge.) People applying under Section 245(i) are screened for criminal offenses, health problems, the potential of becoming a public charge, fraud, misrepresentation, and all other grounds of inadmissibility. Each applicant has to pay a $1,000 processing fee, thereby generating revenue for the INS - at no cost to taxpayers.

    The issue is not whether these individuals are eligible to become permanent residents - they already are. The issue is the location from which they are eligible to apply.

    BACKGROUND: Congress allowed Section 245(i) to expire in November 1997, while also providing relief for some immigrants already in the United States. The "sunset" provision adopted at that time covered only those immigrants who were eligible for permanent resident status, and who had filed preliminary paperwork with the INS and/or the Department of Labor (DOL) before January 14, 1998.

    Several bipartisan measures were introduced in the 106th Congress that would have permanently restored Section 245(i). Instead of a full restoration, however, the LIFE Act that was passed and signed into law in December 2000 temporarily reinstated Section 245(i) from January 14, 1998 until April 30, 2001. Since the LIFE Act provided a short, four-month opportunity for eligible people to apply and the INS did not issue regulations implementing the extension until late March of 2001, thousands of eligible applicants were unable to submit their application by the deadline. As a result, Congress and President Bush have made it clear that an extension is necessary.

    In the 107th Congress, several bipartisan extension measures have been introduced. In the Senate, Senator Chuck Hagel (R-NE) and Edward Kennedy (D-MA) introduced S. 778, which would have extended the Section 245(i) deadline for one year, giving people sufficient time and opportunity to submit their applications to obtain permanent residency. Despite strong bipartisan support, the bill was amended to require beneficiaries to demonstrate that the "familial or employment relationship" that formed the basis for the application existed prior to the enactment of this proposed legislation. The House-passed extension, H.R. 1885, would extend the Section 245(i) deadline for only four months, while also requiring beneficiaries to demonstrate that the required "familial or employment relationship" existed on or before April 30, 2001.

    In early September, the Senate took H.R. 1885 and amended it to include the compromise noted above. House leadership agreed to this compromise, and was set to vote on the bill the morning of September 11. However, the vote was not held due to the terrorist attacks. Under H.R. 1885 as amended, any immigrant petitions filed before either April 30, 2002, or four months after regulations are issued (the bill's language is unclear as to whether it is the earlier or the later of these two dates), would form the basis for Section 245(i) eligibility. However, those who file after April 30, 2001 must demonstrate that the "familial relationship" existed before August 15, 2001, or that the application for labor certification that is the basis of such petition for classification was filed before August 15, 2001. Thus, for family cases, the family relationship must have existed before August 15, 2001. This means that the Section 245(i) extension would not be applicable to marriage-based petitions where the marriage was not entered into before August 15, 2001. For employment cases based on labor certifications, the labor certification application must have been filed by August 15, 2001. This means that the Section 245(i) extension would not be applicable to new labor certification applications not filed before that date. Such a restriction essentially ends the extension of Section 245(i) for most business-based applications because most would not have filed an application for a program that did not exist.

    Despite support by the Bush Administration, the INS, and many members of Congress from both parties, Congress has yet to pass an extension of Section 245(i).


    AILA's POSITION: AILA strongly supports the extension and permanent restoration of Section 245(i). Immigrants on the brink of becoming permanent legal residents should be able to file their green card applications from within the United States, rather than having to travel back to their home countries and possibly face draconian consequences that would prevent them from returning to America for years. Without Section 245(i), people fully eligible for green cards can be barred from returning to the United States for three or ten years.

    Restoring Section 245(i) is pro-family, pro-business, fiscally prudent, and a matter of common sense. Section 245(i) allows immigrants with close family members here in the United States to remain with their families while applying for legal permanent residence; allows businesses to retain valuable employees; and provides INS with millions in annual revenue, at no cost to taxpayers. For the period of time the INS was without Section 245(i), the agency suffered major deficits in its adjudication funding, resulting in backlogs in all types of applications, including naturalization and immigrant visa petitions. The State Department (whose consular posts have to process these cases in the absence of Section 245(i)) already are understaffed and under-funded for this task. AILA urges Congress to fully restore Section 245(i).

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