THE ISSUE: Section 245(i) is a vital provision of U.S. immigration law, allowing some 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 employers who cannot find necessary U.S. workers, if they submit petitions 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. The issue is not whether these individuals are eligible to become permanent residents - they already are. The issue is from where they can apply. Finally, each applicant has to pay a $1,000 processing fee, thereby generating revenue for the INS - at no cost to taxpayers.

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

Several measures were introduced in the 106^th Congress that would have permanently restored Section 245(i). 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 have fully restored Section 245(i). S. 2912, introduced by Senators Edward Kennedy (D-MA), Harry Reid (D-NV), Richard Durbin (D-IL), and Bob Graham (D-FL) also would have restored Section 245(i), as well as update the registry date to 1986 and create NACARA parity. However, instead of a full restoration, the LIFE Act, that was passed and signed into law in December 2001, extended Section 245(i) from January 14, 1998 until April 30, 2001.

Due to the fact that the LIFE Act only provided a short, four-month opportunity for eligible people to apply, and the fact that INS did not issue regulations implementing the extension until late March, 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. The House on May 21 passed a limited extension of Section 245(i). 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. Both the short four-month extension and the new requirement create problems for both families and businesses. In contrast, S. 778, introduced by Senator Chuck Hagel (R-NE) and Edward Kennedy (D-MA) would extend the Section 245(i) deadline for one year, giving people sufficient time and opportunity to file.

AILA's POSITION: AILA strongly supports the 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 bared 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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