Immigration: What is Section 245(i)?

Before 1994 anyone who filed papers for legal immigration status in the US, had to leave the US to complete the process if they were out-of status, or if they had ever failed to maintain status (except for marriage to a US citizen). The immigration papers were all filed and approved inside the US, but the personal interview had to be held at the US Consulate in the applicant’s home country.

No applicants ever wanted to leave the US to attend their personal interviews at the US Consulates abroad, for fear that they wouldn’t be able to get back into the US. Immigration attorneys all over the US argued that entire families were flying back to the US Consulates in their home countries; and the only ones getting money out of this procedure were the airlines, which were getting a LOT of money as families of 4 and 5 or more bought airplane tickets back to their own countries!

In 1994, Congress was finally convinced, and Section 245(i) was added to the Immigration and Nationality Act. Section 245(i) allowed people who qualified for permanent resident status to be able to complete their process inside the US, instead of flying back to the US Consulates in their own country, if they paid a $750.00 fine per person in the family. This $750.00 fine soon was increased to a $1,000.00 fine per person over the age of 17 years. However, many Americans were opposed to Section 245(i), even though it brought significant revenues into the US. Many Americans felt that this was essentially “rewarding” illegal persons by permitting them to complete their immigration cases inside the US. Therefore, Congress placed a “sunset clause” on Section 245(i). This meant that Section 245(i) would sunset, or end, on January 14, 1998.

Once again, there was an outcry from employers and immigration attorneys across the US, and on December 21, 2000 Congress agreed to extend Section 245(i) until April 30, 2001. As April 30, 2001 approached, voters started petitioning Congress to again extend Section 245(i). Congress agreed and the bill was sent to the desk of President Bush to be signed. This was called the LIFE Act. It did not get signed by the President right away, but was expected to be signed in the fall.

Then, something happened in our country. On September 11, 2001, the World Trade Center in New York was attacked, along with the Pentagon and United Flight 93. President Bush said that in light of these events, he could not sign the extension of Section 245(i).

Up until today, Section 245(i) has still not been extended and we are left with the unusual date of April 30, 2001. Immigrants who had labor certifications or visa petitions filed on their behalf between 1998 and April 30, 2001 can still qualify for adjustment of status today. The deadline for Section 245(i) ended over 13 years ago. However, immigrants who qualify for adjustment of status under Section 245(i) — and their children and other dependents — still become permanent residents due to 245(i)’s provisions to this day.

However, this leaves thousands of otherwise qualified persons who did not begin an immigration process before April 30, 2001 unable to adjust status in the United States. They cannot return to their countries to complete the legal process of obtaining permanent resident status without being subject to either a three or a 10-year bar from the United States. ( Sections 212(a)(9)(i) and 212 (a)(9)(ii) of the Immigration and Nationality Act (INA) impose re-entry bars on immigrants who are present in the U.S. illegally for a period of time, leave the U.S., and want to re-enter lawfully.)[i] - Article by immigration attorney Cynthia R. Exner, Danbury, CT

[i] Immigration Policy Center