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Looking Beyond the April 30th Deadline: Ideas for a Sensible Immigration Policy
by Cyrus D. Mehta

The April 30th deadline that provided a 4-month window of opportunity for undocumented people to file applications has closed. This vital legal provision, known as Section 245(i), allowed those illegally residing in the US to ultimately adjust status upon approval of the applications filed before the deadline. Those filing after the deadline will have to obtain the green card in their home country. Departing the US would most likely trigger the highly punitive 3 and 10 year bars against reentry into the US.

Thousands of people took advantage of this provision that became effective on December 21, 2000, and ended on April 30, 2001. At the same time, many were unable to benefit before the deadline because there were insufficient attorneys and authorized legal organizations available to handle these cases. As this provision is also highly complex, many people were unable to understand whether it would apply to them or not.

As the deadline approached, there were moves in Congress to extend it but nothing happened. On May 1, President Bush nudged the issue further in a letter to Congress encouraging an extension of Section 245(i). His letter, which is one of his first policy statements on immigration, is extremely positive.

Here are the opening lines of the President's letter:

I am a strong proponent of government policies that recognize the importance of families and that help to strengthen them. To the extent possible, I believe that our immigration policies should reflect that philosophy. That is why I support legislation to extend the window created under Section 245(i) of the Immigration and Nationality Act during which qualified immigrants may obtain legal residence in the United States without being forced to first leave the country and their families for several years.

The letter also makes reference to "ensuring a more orderly, legal and humane migration flow" between the US and Mexico based on recent high level discussions between the two countries. Never before in recent years has a President taken such a positive approach on immigration.

Although the permanent restoration of Section 245(i) is important, it is also vital to examine the underlying deficiencies in the immigration system. Section 245(i) does not alter the current immigration system. Although extremely beneficial, it only serves as a band-aid to help people avoid the 3 and 10 year bars. But should these bars exist in the first place?

While the April 30th deadline offered the only hope to an undocumented worker, it would still take seven to ten years, or even longer, for a semi-skilled or unskilled worker to ultimately get a green card in the US. For this distant green card to materialize, an employer must have filed a labor certification application before the deadline. The reason for this length delay is due to the very limited number of visas available to semi-skilled and unskilled workers. In the meantime, this worker continues to remain undocumented in the US, be amenable to deportation and remain in the same job without any prospects of mobility. There is an urgent need to change the currently unviable system that keeps the worker undocumented for several years even though an application has been filed on his or her behalf.

Indeed, there is no basis to keep such workers undocumented when there is a clear need for them in the US. According to a recent policy report of the American Immigration Law Foundation, the recent slowdown in the economy has not decreased the demand for low wages workers.* The Bureau of Labor Statistics has also predicted that by 2008 America will have more than five million jobs than people to fill them! Also by 2008 the median age of the labor force is expected to be over forty years old, individuals who are usually at a point in their lives where they are working at higher paying, higher skilled jobs. Actually, there exists a fair degree of hypocrisy in US policy towards low wage immigrant workers. Instead of changing the laws to reflect the economic realities, there appears to be a tacit approval with respect to their illegal entry and undocumented status in this country.

The laws must also remain sensitive to the dignity of the individual. It is impossible for family members to remain separated for over five years just because of legally mandated quotas. Laws that break up families are not likely to be respected and followed. Imposing 3 and 10 year bars upon reentry add insult to injury.

Even in employment-based immigration, why should the employer have the upper hand? The worker must also have the ability to remain "portable" during the entire pendency of the application. Also, the worker should not always be at the mercy of the employer to initiate the process.

It is time to look beyond Section 245(i) and bring about sensible immigration reforms that recognize the dignity of the individual and reflect economic realities. Once a more humane and rational immigration system is in place, it will be easier to enforce penalties against violators.

* Essential Worker Shortage Continues, Immigration Policy Report, American Immigration Law Foundation (April 2001) -

About The Author

Cyrus D. Mehta, a graduate of Cambridge University and Columbia Law School, practices immigration law in New York City. He is Vice Chair of the American Immigration Lawyers Association's National Labor Department Liaison Committee, trustee of the American Immigration Law Foundation and recipient of the 1997 Joseph Minsky Young Lawyers Award. He is also Chair of the Immigration and Nationality Committee of the Association of the City Bar of New York. He frequently lectures on various immigration subjects at legal seminars, workshops and universities and may be contacted at 212-686-1581 or

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