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House Passes Flawed 245(i) Extension
by Cyrus D. Mehta

On March 12, 2002, the House narrowly passed a bill that would extend Section 245(i). This provision would allow undocumented aliens to adjust status in the US instead of proceeding to a US consulate for the green card.

Section 245(i) was last extended until April 30, 2001. Many were critical about the short window of opportunity - December 21, 2000 to April 30, 2001 - leaving little room for people to file applications before the deadline.

The House’s current measure is severely flawed, but sends an important signal that America can still be pro-immigrant despite the September 11 terrorist attacks. While the measure appears to extend Section 245(i) until November 30, 2002 (or four months after the INS issues regulations implementing this law, whichever is earliest) many will not qualify because of the additional requirement that eligibility for Section 245(i) be established prior to August 15, 2001. For people who are submitting a family-based application, the new provision would require that the “familial relationship that is the basis of the application” existed before August 15, 2001.

People who are submitting an employment-based application would have to prove that a labor certification was submitted prior to August 15, 2001. The requirement that an application had been previously filed will render this extension meaningless for employment-based applications.

Section 245(i) previously expired on April 30, 2001. It made little sense for an employer to submit a labor certification application on behalf of an employee who needed Section 245(i) after April 30 as there was no program in place. Even ethical and cautious immigration attorneys advised their clients to wait until Congress passed a definitive measure. Unfortunately, the measure that the House passed on March 12 betrayed this justified caution.

The new measure was largely motivated by President Bush’s March 22 meeting with Mexican President Vincente Fox. While Section 245(i) is likely to benefit people from any country, Mexicans are likely to gain the most. The measure, however, falls short of far bolder proposals that have emerged from ongoing negotiations between Mexico and United States to grant greater legal rights to millions of undocumented Mexicans immigrants as well as expand guest worker programs for Mexican and other workers. Even though flawed, Section 245(i) is a step in the right direction as it signifies that there is little support for the restrictionist agenda of anti-immigration forces. It is also heartening to note that lawmakers are able to distinguish between immigrants, even undocumented, who work hard to build this nation and terrorists who seek to destroy it.

Representative Tom Tancredo, a Republican Congressman from Colorado, is fast emerging as a leading voice on the Hill for anti-immigrant groups. He said that the bill would “invite future terrorists to exploit lax enforcement of the immigration laws.” His own party leaders, however, such as Republican Dick Armey of Texas, the House Republican leader, think otherwise. “The bill sends a message to the world that our country will be a beacon to all who love freedom and the opportunity to live, work and raise a family," Mr. Armey said. Although most Democrats supported the legislation, they would have preferred a permanent extension of Section 245(i). The short extension will again lead to much confusion in communities about when people must apply and who is eligible. Furthermore, notarios and other unauthorized practitioners will take advantage of the confusion generated by this imperfect and limited extension.

Unfortunately, the new version of Section 245(i) will provide benefits to a very limited group of people. Section 245(i) is not an amnesty program as the anti-immigrant forces make it out to be. People would only be able to take advantage of Section 245(i) if they have an approved family- or employment-based immigration visa petition. The program would allow them to obtain green cards in the US rather than leave this country and face the dreaded 3- or 10-year bars against reentry into the US.

The bill will only become effective once the Senate passes a similar measure and the President signs it. The President has always been a great supporter of Section 245(i) and the Senate had previously voted for a similar provision.

Section 245(i) is part of a broader bill known as the “Enhanced Border Security and Visa Entry Reform Act of 2002,” H Res. 365. You can find the bill here on ILW.COM site.

About The Author

Cyrus D. Mehta, a graduate of Cambridge University and Columbia Law School, practices immigration law in New York City. He is a 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 212-425-0555 or

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