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Two Significant Developments: President's Legalization Proposal and Section 245(i)
by Cyrus D. Mehta

There have been two significant developments recently: President Bush's legalization proposal and a likely extension of Section 245(i).

Legalization Proposal

President Bush recently floated an amnesty proposal for undocumented Mexican workers. This was quickly refuted when a Bush administration official stated that it was considering creating a new guest worker program that might provide a way to legalizing an estimated three million undocumented workers in the United States. Even President Bush later stated that he was opposed to a blanket amnesty program and insisted that his proposal would be part of an extended guest worker program to meet labor shortages claimed by employers. Under such a program, new workers with temporary visas could earn permanent legal residency over time based on their job history and length of residency, and so could immigrants already living here unlawfully.

The announcement met with protests from pro-immigrant and anti-immigrant groups. Pro immigrant groups complained that other immigrants should also be included under this proposal. President Bush responded that there was nothing definite about his initial proposal and it could be expanded to "all folks here."

Republican leaders close to the President are opposed to such a proposal as they think it would reward people who have broken the law. While Bush's objective is to get more Hispanic votes in the next election, a section of the Republican leadership feels that new Hispanic citizens will still continue to vote against their party.

At this point, no bills have been introduced in Congress and the proposals also appear to be in the process of formulation. When a bill is introduced, it will surely result in a heated battle.

A good model to follow is the agricultural guest worker measure (S. 1161) that was introduced by Senator Craig (R-Idaho). The bill known as "The Agricultural Job Opportunity, Benefits and Security Act of 2001" would streamline the current H-2A program for temporary agricultural workers and give certain H-2A workers a one-time chance to adjust status if they continue to work in the United States for a period of years. If this measure gets passed, it could pave the way for a broader initiative that would cover other essential workers.

Section 245(i)

There has been some movement on extending Section 245(i), the provision that expired on April 20, 2001. Section 245(i) allows those illegal in the United States to ultimately adjust status to permanent residence if they filed an immigrant visa petition or labor certification application on or before April 30, 2001.

In May 2001, the House passed a bill that would have extended the deadline for four months but would also include a restriction, requiring applicants to demonstrate that a family or employment relationship existed on or before April 30, 2001. Last week, the Senate judiciary committee passed S. 778 to extend the deadline beyond 4 months, until April 2002. S. 778 would also require the applicant to demonstrate that the family or employment relationship, the basis for the application or petition, existed on or before the date of enactment of S 778.

While an extension of Section 245(i) is desirable, it would be in everyone's interest to restore Section 245(i) permanently. Temporary extensions lead to confusion, panic and result in excessive filings, resulting in further backlogs and delays. It is also hoped that by the time the bill becomes law, the requirement of demonstrating the pre-existing family or employment relationship will be eliminated.

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