ISSUE PAPER

245(i): A Matter of Family Unity and Common Sense

THE ISSUE: Section 245(i) was a vital provision of U.S. immigration law, allowing 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. Congress allowed Section 245(i) to expire in November 1997, while also providing relief for some immigrants already in the United States. That provision covers only those immigrants who were eligible for permanent resident status under Section 245(i), and who had filed preliminary paperwork with INS and/or the Department of Labor before January 14, 1998. Congress should fully restore Section 245(i) because it is pro-family, pro-business, fiscally prudent, and makes sense.

BACKGROUND: Section 245(i) was available to immigrants sponsored by close family members residing in the U.S., or employers who could not find necessary U.S. workers.  Immigrants applying for permanent residence under Section 245(i) were eligible for their green cards, but were unable to obtain them in the U.S. because they were 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.  The issue is not whether these individuals are eligible to become permanent residents – they are, but rather from where they can apply.  Finally, each applicant had to pay a $1,000 processing fee, thereby generating revenue for the INS — at no cost to taxpayers. 

For many immigrants who were out of status, the sunset of Section 245(i) means 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.

Since the expiration of Section 245(i), INS has 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.

CURRENT STATUS:

H.R. 1841, introduced by Representatives Luis Gutierrez (D-IL) and Connie Morella (R-MD), and S. 2668, introduced by Senators Bob Graham (D-FL) and Gordon Smith (R-OR) would fully restore Section 245(i) – thereby allowing immigrants on the brink of becoming permanent residents to remain in the U.S. while the INS processes their applications.  H.R. 1841 would give no special rights or status to people. Applicants must still demonstrate that they are eligible for a green card based on a family relationship or a sponsoring employer.

S. 2912, introduced by Senators Edward Kennedy (D-MA), Harry Reid (D-NV), Richard Durbin (D-IL), and Robert Graham (D-FL) also would restore Section 245(i), update the registry date to 1986, and create NACARA parity.