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New § 245(i) Extension Proposal with Restrictions
by Cyrus D. Mehta

House Republicans last week introduced a bill (H.R. 1885) that would extend the § 245(i) deadline for four months. The bill also included an additional restriction requiring beneficiaries to demonstrate that the required familial or employment relationship existed on or before April 30, 2001. The White House earlier stated its support for a 6-12 month extension. There also is bipartisan legislation in both Houses of Congress for similar extensions. The new proposal of a limited 4-month extension with restrictions is "out of the blue."

While this proposal ultimately may expedite the passage of an extension, the four-month window would offer insufficient time, cause needless delays and hardships for people seeking § 245(i) relief, and prove difficult for the INS to administer. In addition, given this new requirement, INS would have to issue a new regulation. (It took the INS over 3 months to issue a new regulation after the passage of the LIFE Act.) This short window caused delay, panic and confusion among immigrants and created an opportunity for unscrupulous and fraudulent immigration "advisors." Past experience argues for a clean extension of a longer period of time without new provisions.

April 30 has come and gone, and with it the extension of eligibility for § 245(i) granted in last year’s Life Act. During this four-month window, record numbers of individuals and employers filed the underlying petitions and labor certification applications that will later allow adjustment of status. However, many were unable to do so. Problems with implementation meant that many were unable to benefit from this provision simply because there were insufficinet lawyers and authorized legal clinics available to process application and petitions. In addition, the INS delayed issuing regulations until March. Furthermore, unlicensed immigration consultants and "notarios" took advantage of the confusion generated by the absence of an adequate infrastructure and offered their "services" to people desperate for guidance. In addition, employers who wished to assist individuals by sponsoring them for labor certification were deterred by reports that such filings have resulted in enforcement actions in INS against both the employees and the employers under employer sanctions laws, resulting in even more individual unable to take advantage of the new law. Unfortunately, the sponsors of the LIFE legislation did not take into account this factor. (Three days before the expiration of the law, the INS issued a memorandum to its offices directing them to take no enforcement action against individuals based on § 245(i) filings. The policy only applies to cases filed in those last three days, but the INS has dropped proceedings already instituted in some parts of the country. The memorandum does not protect employers who file labor certification applications from employer sanctions investigations.)

Several bills have been introduced to extend this deadline. As noted, House Republican leadership on May 17 introduced H.R. 1885 that would extend the deadline for 4 months. H.R. 1885 includes the December 21, 2000 physical presence requirement, and adds a new requirement that the beneficiary of a petition or application must demonstrate "that the familial or employment relationship that is the basis of such petition for classification or application for labor certification existed on or before April 30, 2001." Senators Chuck Hagel (R-NE) and Edward Kennedy (D-MA) introduced S. 778 that would extend the §245(i) deadline for one year, until April 30, 2002, H.R. 1242, introduced by Representative Peter King (R-NY) would extend the deadline for six months. H.R. 1195, introduced by Representative Charles Rangel (D-NY) and H.R. 1615, introduced by Representative Sheila Jackson-Lee (D-TX), would extend the deadline for one year. In early May, President Bush issued a letter to Congress supporting an extension of § 245(i). In his letter, President Bush recognizes the importance of families and the need for government policies that help to strengthen them. However, his letter did not address the length of the extension.

AILA and other advocacy groups are disappointed with H.R. 1885 and House Republican Leadership’s support for a 4-month extension of § 245(i) with additional restrictions. This short window and these restrictions will cause needless confusion, delay, and hardship both for people seeking § 245(i) and the INS. We are hopeful that House Republican leadership will support a bill with a longer time frame and no restrictions; one that is more in line with the Senate bill, S. 778, and is consistent with the intent and spirit in the President’s letter. The House may take up H.R. 1885 as early as next week.

§ 245(i) is the only hope for legal status for many undocumented immigrants. Although many have been living in the country for many years, hold jobs, pay taxes, and have the family or employer sponsorship that would make them eligible for green cards, the "catch-22" of the three and ten year bars and the absence of any mechanism that would allow them to adjust status in this country has forced many of them to remain underground. Employers with valuable employees have looked to § 245(i) as the only potential means of retaining good workers. Family members view § 245(i) as the only way to remain with their loved ones.

Please contact the White House and your Representative and Senators NOW and urge them to support a final measure that is closer to the bipartisan Senate legislation, S. 778, sponsored by Senators Hagel and Kennedy. S. 778 would extend the § 245(i) deadline for one-year without the restriction in the House proposal.

You can reach your Representative and Senators through the Congressional Switchboard (202-224-3121). You can reach the White House by calling 202-456-1111 or 202-456-1414. Thanks.

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 Law Committee of the Association of the Bar of the City 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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