New Section 245(i) Provision Passed by House of Representatives and Awaiting the President’s Signature
March 22, 2002

By now many have heard that the U.S. House of Representatives passed a new Section 245(i) provision and that all we are waiting for is the President’s signature. What most have not heard is the fact that the proposed provision will benefit a very limited class of illegal aliens. And whether Section 245(i) will actually be reenacted in any form whatsoever, remains to be seen.

What does the new, Section 245(i) proposal provide?

First of all, a history lesson. Remember, Section 245(i) is not an amnesty!!! Do not let anyone tell you otherwise. Instead it is a vehicle by which certain individuals who are in the U.S. as visa overstays or who entered without inspection can convert their status to that of a U.S. lawful permanent residence without ever having to return to their home country to complete processing – as was historically required under the law.

The first ingredient, however, is the right type of family member or employer to commence the process. With that ingredient in place, SECTION 245(i) can be of help to the following classes of aliens:

1. those in unlawful status (either as overstay, without inspection or crewman) who are trying to obtain their U.S. permanent residence by way of an employer’s immigration filing,
2. those in unlawful status (either as overstay, without inspection or crewman) who seek to obtain their permanent residence by way of an of a Family Based Preference petition (other than as the spouse of a U.S. citizen, under 21 year old child of a U.S. citizen, or as the parent of an adult U.S. Citizen) and
3. those who entered without inspection or as crewman, and are a) the spouse of a U.S. citizen, b) the under 21 year old child of a citizen or c) the parent of an adult U.S. Citizen)

And, as mentioned many times in this column previously, those unlawfully in the U.S. who continue to be eligible to adjust to permanent resident status in the U.S. WITHOUT Section 245(i) are MOST VISA OVERSTAYS who a) are married to U.S. citizens or soon to be U.S. citizens, b) are the under 21 year old children of U.S. citizens, or c) are the parent of an adult U.S. citizen.

Previously, the essential requirement to qualify under Section 245(i) is having been the beneficiary of some kind of family or employment based petition or labor certification filing prior to April 30, 2001. Such individuals are “grandfathered” in, and can even proceed toward permanent residence through a subsequent, completely different family or employer based filing commenced after April 30, 2001.

As for the proposal presented by the House of Representatives, not much new and exciting is added. Specifically, two new classes of applicants stand to “benefit” – 1) family based applicants whose family relationship existed as of August 21, 2001 and an INS visa petition is filed on their behalf within the 120 period following the law’s enactment, or November 30, 2002 – whichever is earlier and 2) employment based applicants whose employers commenced an immigration or U.S. Department of Labor filing before August 21, 2001.

Clearly the number of beneficiaries in Group # 1 will be limited, especially since potential applicants will not have a chance to conform their behavior (e.g. get married to a U.S. citizen) in response to the law being enacted. And Group # 2 will include an even more limited number of beneficiaries, since not many people would have had employment based filings submitted on their behalf after April 30, 2001 and before August 21, 2001. That is because after the earlier Section 245(i) deadline of April 30 came and went, there existed no good reason to proceed with a new employment based filing – of course unless the person was equipped with supernatural abilities to know that a new Section 245(i) would later be enacted, such that his post-April 30, but pre-August 21 filing would be of help to him.

In conclusion, following the scurry of immigration-related activities in Congress recently, it is important to remember the following points:

1. As of March 22, 2002, no new Section 245(i) provisions have been enacted, although the House of Representatives has agreed on a proposal,
2. Even if Section 245(i) is reenacted, we must remember that Section 245(I) IS NOT AN AMNESTY,
3. If and when Section 245(I) is reenacted, the exact language of the legislation must be carefully examined to determine who benefits. As discussed above the class of beneficiaries to benefit from the legislative proposal currently on the table is extremely limited at best. However, it is very possible that a new Section 245(i) enactment with more expansive coverage may come to be,
4. Section 245(i) is not needed, and has never been needed, for the vast majority of visa overstays seeking to adjust to permanent resident status in the U.S. if they are the a) spouse of a U.S. citizen, b) the under 21 year old child of a U.S. citizen or c) the parent of an adult (over 21 year old) U.S. citizen.