A Matter of Family Unity and Common Sense
THE ISSUE:
Section 245(i) was a vital provision of U.S. immigration law which permitted those immigrants who were on the brink of becoming permanent residents to apply to adjust their status (to obtain their green cards) in the United States, rather than requiring them to return to their home countries to apply. As part of the Commerce, Justice, State FY98 appropriations, Congress allowed Section 245(i) to expire in November 1997 but did provide relief for certain immigrants already in the United States. Congress should fully restore Section 245(i) because it is pro-family, pro-business, good policy and makes sense.
BACKGROUND:
Section 245(i) was available to immigrants who were sponsored by close family members or by employers who could not find necessary U.S. workers. Immigrants applying for permanent residence under Section 245(i) were eligible under the existing quota system but had fallen "out of status." (An immigrant can fall out of status because of a technical problem with his/her visa or because of Immigration and Naturalization Service (INS) delays, and it can happen without the immigrant’s knowledge.) People adjusting status under this provision were screened to make sure that they were not barred by any ground of inadmissibility from obtaining a green card. Criminal offenses, health problems, the potential of becoming a public charge, fraud, misrepresentation, or any other ground of inadmissibility would have prevented an immigrant from applying for permanent residence under Section 245(i). Because people using Section 245(i) were required to be otherwise eligible to become permanent residents, the issue was not whether these immigrants were eligible or not, nor when they could adjust, but rather from where they could apply to become permanent U.S. residents. In addition, Section 245(i) generated about $200 million annually in revenue for the INS by assessing each immigrant applying under this provision with a $1,000 fee.
Without Section 245(i), immigrants now must return to their home countries to apply for permanent residence. Rather than expend time and resources flying home for extended periods (in addition to family and employment disruption), Section 245(i) simply charged a fee, which was then used to fund INS adjudications and detention at no expense to taxpayers. Furthermore, Section 245(i) lifted from the Department of State much of the burden of adjudicating residence applications at U.S. consulates abroad.
CURRENT STATUS:
In November 1997, Congress, while voting to allow Section 245(i) to expire, included a limited grandfathering clause. Under this clause, only those immigrants who were eligible to and who had filed preliminary paperwork with INS and/or the Department of Labor prior to January 14, 1998 were able to adjust to permanent status under Section 245(i). For many immigrants who were out of status, a confluence of factors including draconian provisions from 1996 immigration reform and Section 245(i)'s sunset has meant that they have had to leave behind their families and jobs and spend years outside of the United States. Without Section 245(i), people fully eligible to become green card holders can be barred from returning to the U.S. for three to ten years. To remedy this
situation and restore Section 245(i), Representatives Luis Gutierrez (D-IL) and Connie Morella (R-MD) introduced H.R. 1841 in late May.
AILA's POSITION:
AILA strongly supports full 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 return to their home countries and possibly face draconian consequences preventing for years their return to America.