April 30 Has Come and Gone, But Section 245(i) May Come Back For Another Visit
May 4, 2001

The magical section of the Immigration and Nationality Act known as Section 245 (i) was born in 1994 and lived a brief life, expiring in January, 1998. More recently, on December 21, 2000, Section 245(i), was reborn, but only for a four-month period, through April 30, 2001. And according to a recent White House statement, President Bush is in favor of allowing more time for individuals to benefit from Section 245(i) and has urged Congress to act on a number of pending bills calling for the reinstatement of the law for at least a few more months.

I have been practicing immigration law for more than 13 years and have lived through both incarnations of Section 245(i). From what I have seen, the law provides an excellent chance for those in the U.S. illegally to start a process that sooner or later will lead toward their immigration status getting resolved. On the negative side, is the misinformation, confusion and panic in the communities, especially during Section 245(i)’s most recent 4-month visit.

In trying to describe the law and its effects to curious friends and family who have heard or read about the new law or have seen the long lines in front of INS, I first liken the situation to one where the Surgeon General has issued a statement that a cure for cancer has been achieved, except that you have only 4 months to sign yourself up to have a chance to be cured. Panic, desperation, and confusion ensues. How and where do I get the cure? If I pay $5,000 to that neighborhood lady who claims those special connections to save a spot for me under Section 245(i), do I stand a better chance? The questions get even crazier.

The people are not crazy, I have learned – just desperate. Educated people, simple people, rich people, poor people, white collar, blue collar, it makes no difference, the public is misinformed. And this applies to all of the ethnic communities. I know first hand, as I have had a chance to interview hundreds and hundreds of prospective applicants and it takes me at least 15 to 30 minutes to explain what the law really is. And it is not that the law is so complicated either – rather it is because a desperate person cannot or does not want to believe you when you tell them that they may not have the right family member or sponsoring employer to yield an immediate immigration benefit, such as an employment authorization document (“work permit”) or advance parole travel document.

When your life is in limbo, you want to believe anything, especially when the media makes it as easy as filing a “245(i) application” and paying a $1,000.00 penalty.

The reality is that unless you marry a U.S. Citizen, it rarely is that simple. Moreover, most visa overstays (excluding K-1, and crewmen) who marry U.S. citizens (or soon to be U.S. citizens) do not even need Section 245(i) and pay a penalty, since their eligibility to apply for residence derives from Section 245(a) – a section of law that has always been around and continues to live on past April 30. As I stated in previous columns, Section 245(a) allows most any visa overstay to apply for residence in the U.S. based on such a marriage, without returning to their home country for processing and without payment of penalty. This option continues at present.

So who really benefits under Section 245(i)? In an attempt to clarify some of the basics of the law, let’s analyze a recent Chicago Sun Times article for accuracy. On May 2, 2001, an article entitled, “Bush backs extending immigrants’ visa deadline” appeared on Page 36. The article, which seems to be an oversimplified summary of an Associated Press wire service account, starts off “Illegal immigrants who missed the deadline to apply for visas to stay in the country may get another chance”.

Wow! Does that mean that if I do not apply under the new law once, and if, it is reenacted, will I be forced to leave the U.S.? (NO) And if I do apply, I can relax, right? Based on the Sun-Time’s depiction a reasonable reader may very well be thinking that they better do something, anything, or they won’t get the chance to stay.

The quarter page article goes on to “explain”: “A visa allows an immigrant to stay in the country and reserve a place to later apply for a green card – which signifies permanent legal residency. To apply for visas, immigrants had to be sponsored and have a close relative who is a U.S. citizen or permanent resident. They also had to pay $225 in application and fingerprinting fees and a $1,000 fine for entering the country illegally”. In other words, pay these fees, fill out an application and your cancer is cured. Simple, right? WRONG.

Its media depictions like these that have caused many well-intentioned immigration lawyers to loose their hair, their tempers or both. I arrived at this conclusion by mid January, 2001, when consultation after consultation was filled with me explaining over and over that this law is not what the newspapers and television news says it is. And I have decided not to blame most people for not believing me or just not getting it, since if I were watching the news or reading newspaper accounts like this, I would be just as bewildered or in the same fantasy land.

If the law is brought back, who will benefit and how? Really, it depends on the exact language of any new legislation, but likely it will be the overstay or undocumented alien who is:

• the spouse of a U.S. citizen or lawful permanent resident – although, AGAIN, most visa overstays can still adjust in U.S. NOW, and without 245(i), as long as their spouse becomes, or is, a U.S. citizen. The spouses of U.S. citizens realize immediate immigration benefits, such as a work permit, within 90 days of the Adjustment of Status filing with INS Chicago. And again, mainly only those marriage based applicants who entered without a visa, or jumped ship, are one’s who need Section 245(i). And of course, so do most of the applicant classes listed below.
• the child of an U.S. lawful permanent resident or citizen – although the over 21 year old children will wait at least a few years following the filing of the family based petition to realize any immigration benefit such as a work permit.
• the parent of over 21 year old U.S. citizens – immediate immigration benefits available. And like most of the visa overstays who are the spouses of citizens, the parents of adult U.S. citizens who are merely overstays can adjust in the U.S. under Section 245(a). The parent of an adult citizen who entered without a visa, or jumped ship, will need section 245(i).
• the sibling of U.S. citizen. File the petition, but plan on waiting at least 10 years (even more if your from the Philippines) to realize any immigration benefits or work permit. On the other hand, such a sibling/sibling petition may preserve your 245(i) rights should you later find am employer to “sponsor” you.
• an employee with an employer willing to “sponsor” you. Whatever your job, if you have a willing sponsoring employer, it is worth discussing. Registered nurse, physical therapist, most any type of professional, a skilled factory/industrial worker, restaurant cook, even a household worker, home health attendant, nanny or babysitter. All such positions are examples of presently viable avenues toward residence – and further discussion may very well be warranted. For other than RN’s and PT’s, however, we need to prove the unavailability of U.S. workers – and from what I have seen, for many types of positions, this should not be a problem. For RN’s and PT’s a work permit may be only 1 year away, and a green card, just 2 to 2 ½ years away. For other workers, including the domestic and home health positions, it could take anywhere from 3 to 4 years for a work permit, and 4 to 5 years for the green card. It is not simple, but if you have an employer willing to “sponsor” you, viable opportunities MAY exist.

A couple other clarifications.

Other than for spouses and young children of U.S. citizens and parents of adult U.S. citizens, submitting a family based or employment based application does not make one automatically legal and eligible to stay in the U.S. under Section 245(i). Only that at the end of the process – when a visa becomes available, or you have proven that no U.S. workers are in job market for the job (labor certification), will you have a chance to pay a penalty and undergo the final stage of the process (adjustment of status) in the U.S. and without returning home. Hopefully, no one (i.e. the INS) will bother the applicant while he/she awaits visa availability or labor certification processing and the benefits of Section 245(i) can be availed of.

Which leads me to another important point. The important question of whether the submission of a filing based on a family or employment relationship will lead to an INS investigation of the applicant is one that comes up often. I have said that I have never seen a bona fide filing lead to negative immigration consequences for the applicant or his employer. Consistent with this perspective, albeit with a warning, INS spokesperson Bill Strassberger (as quoted in the complete Associated Press May 3, 2001 wire account) confirmed that “(the INS) will not be moving against these people, but they are still illegally in the U.S. and… would be subject to removal if encountered during an enforcement operation, such as a work site inspection”.

Weighing the risk of a work site inspection against the prospect of gaining permanent residence via a promising family or employment based filing, it would appear that in most cases the risk of submitting such a filing would likely be very well worth it.

Also, about paying the penalty. Other than marriage based applicants (whose spouses are now U.S. Citizens) and who entered the U.S. without a visa, most individuals will not pay a penalty until the end of the whole process, whether it be 1 year or 20 years down the road.

To effectively clear up all of the public’s confusion and misunderstanding regarding Section 245(i), not even 10 pages of explanation would be enough. Instead, I end this article with a final piece of advice regarding legal representation. Whether or not Section 245(i) returns, when seeking to fully understand your rights under U.S. immigration laws, arrange a consultation with an immigration lawyer – someone whose practice concentrates in immigration matters. If the advice sounds crazy or you question the competence of the attorney, seek a second opinion.

And as to which immigration attorney you should trust, it is helpful to seek a referral from a friend, clergyman, a trusted non-immigration attorney or some other trusted professional within your family. Also, organizations such as the American Immigration Lawyers Association or “AILA” (based in Washington D.C.) can refer a reputable attorney in all parts of the U.S., including Chicago. For more information, you can contact AILA by telephone at (202) 216-2400 or visit their website at www.aila.org

Section 245(i) is not an absolute cure. But, it can open up the door for the possibility of one. Important developments will continue to be covered in this column.