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In Your Face With the Regs - 245(i), Where Art Thou?
by Jose Latour

You may have noticed an unusual silence of late on the issue of extending Section 245(i) of the Immigration and Nationality Act, the section which allows persons who have violated certain conditions (most commonly overstaying their time or unlawful employment) to pay a fee and adjust status to permanent residency in the U.S. when they have an otherwise viable vehicle to permanent residency. At the time of the provision's sunset on April 30, 2001, a number of legislative initiatives were in the works in both houses of Congress and extension of 245(i), in one incarnation or another, seemed pretty certain.

Then came September 11th. Since then, several Congressional members -- mostly Republicans, I am sad to say -- have sent letters to their colleagues, totally trashing 245(i) and bombarding their peers with misinformation. I wasn't able to see any of the letters by the time I needed to get the article online, but basically, here is what I was able to gather:

  • The letters were generated as an emotion-triggering response intended to somehow wildly connect the notion of 245(i) (which simply lets persons who have found a legal means to immigrate to do so via adjustment of status despite overstaying or unauthorized employment) to terrorism.

  • Some of the letters actually contained photographs of the September 11th scumbags. Others, such as one sent out by Colorado Republican Tom Tancredo, omit the ridiculous picture but attack 245(i) on "national security grounds." As a former consular officer, this one is particularly amusing. The notion that a consular officer abroad, with her email and nothing else, is better equipped to perform a security screening than an INS officer conducting an adjustment interview armed with full domestic FBI resources, is ludicrous. Tom, fire the law clerk, bud. You're not getting your money's worth, trust me.

According to an article appearing in the January/February 2002 AILA Monthly Mailing, 13 representatives have countered the preceding letters with other "Dear Colleague" letters citing the FACTS about 245(i) and why it really has nothing to do with these issues.

So what is the truth about 245(i)? Well, for one thing, the notion that it is some sort of "amnesty" is bogus. If you do not have a viable category for your immigration, 245(i) does NOTHING for you. In order to take advantage of it, you MUST have an immigration option already existing. All 245(i) does is keep a person from having to go abroad, and, in the case of persons who have overstayed and are subject to the 3/10 year bars, prevent extended and painful family separations.

Who benefits from 245(i)? Well, immigration violators do, but before you wince, let me tell you about those violators. Generally speaking, their sins are limited to:

  • Having overstayed their status in the U.S.

  • Having been employed without authorization.

In most 245(i) cases our office has seen since the original enactment of this humanitarian provision, the individual was a hardworking employee who had been paying taxes from day one. Their U.S. citizen children would be horribly affected -- and become public charges -- if the breadwinning parent was NOT allowed to adjust via 245(i).

If the person has any disqualifying element -- say, shoe bomber, prostitute, etc. -- 245(i) does nothing for that person. All 245(i) ever did and will ever do, if Congress can get its fuzzy act together, is keep families together, keep U.S. taxpayers from supporting U.S. citizen children whose parents are forced to go abroad for extended periods, and allow good folks who foolishly goofed up their immigration status to pay a big fat fine to our tax coffers, enrich our government, and wipe their slate clean.

Can someone please tell me what the big deal is?

About The Author

Jose Latour is the founding partner of Latour and Lleras, P.A., a Gainesville, Florida based business immigration practice working primarily with the IT industry and foreign investors. Latour and Lleras is an A/V rated firm whose web site,, is one of the Internet’s most visited immigration sites. The firm was named “ONE OF AMERICA’S TOP TEN INTERNET/VIRTUAL COMPANIES” in the 1999 Inc. Magazine and Cisco Systems “Growing with Technology Awards.” Mr. Latour served as a U.S. Diplomatic and Consular Officer in Mexico and Africa before entering private practice and today divides his time between his law practice, writing, flying, and his music.

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