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Bring Back 245(i): Is There A Better Way?
by Gary Endelman

Gary Endelman practices immigration law at BP America Inc. The opinions expressed in this column are purely personal and do not represent the views or beliefs of BP America Inc. in any way.

Biography On March 12 the House of Representatives passed an extension of Section 245(i) as an amendment to the Enhanced Border Security and Visa Reform Act of 2002. The re-emergence of this issue comes right before, and as a direct consequence of, President Bush's upcoming visit to Mexico later this month. The President wants to bring with him some tangible evidence of his concern for the plight of Mexican migrants who have made their way north to the United States. The President, and perhaps more importantly his political advisers such as Karl Rove, see in such symbolism a way to unlock a treasure trove of Hispanic votes for 2004, thus ensuring re-election for a President who never forgets that he lost the popular vote to Al Gore.

Section 245(i) of the Immigration and Nationality Act allows otherwise qualified immigrants who have had technical visa problems, brief periods of unauthorized employment or failed to maintain a continuous lawful status in the US, for whatever reason, including INS delays in adjudicating their requests for benefits, to apply for green card status without leaving this country. Since Congress first enacted Section 245(i) in 1994, it has been a lightning rod for controversy. Consequently, Congress allowed Section 245(i) to expire in November 1997 but permitted a "sunset" provision to survive that covered those immigrants who were eligible for permanent resident status, and who had filed the necessary preliminary paperwork with the INS or the Department of Labor, before January 14, 1998. Ever since then, supporters of 245(i) have been trying to bring it back. They succeeded partially in December 2000 when the Legal Immigration and Family Equity (LIFE) Act opened up a brief, four month window that reinstated 245(i) until April 30, 2001. True to form, however, the INS did not get around to issuing any implementing regulations until late March of 2001. The end result was that many thousands of eligible folks could not apply. Now, the House of Representatives has remedied this injustice and all is well with the Republic. Right? Well, not really but you have to read on to find out why!

As passed by the House, 245(i) is extended yet again to November 30, 2002, or to a four month period after the INS promulates regulations, whichever is earlier. However, and there always seems to be one of these when talking about immigration, the House also mandated that the relationship, whether employment or family-based, on which the immigrant petition was based must have existed before August 15, 2001. Why an employer would have hired an undocumented worker at at time when there was no way to legalize him or her, since 245(i) did not then exist, and then admit to doing so through filing of an application for labor certification, something that is, in effect, an invitation to the imposition of employer sanctions, is a bit puzzling to many disinterested observers. Since little of substance was achieved by the House vote, one wonders why its supporters and opponents screamed so long and loudly throughout the House debate. Clearly, anything meaningful will only come, if it does, out of the Bush-Fox talks and the lower-level negotiations to follow. What the House has done is intriguing symbolism but not much more.

There is a national security argument behind 245(i), though it does appear counter-intuitive on its face, to allow those here in violation of US law to gain the right to permanent status. Legalizing the millions of undocumented migrants already here promotes homeland security by bringing them out into the open, making them part of the mainstream economy, depriving would-be terrorists of easy cover and enabling the INS to concentrate on apprehending foreigners who want to destroy American society rather than those immigrants who want simply to become part of American Society by earning a living wage in peace and dignity. This is the same national security argument that justifies the abolition of employer sanctions. We need to know who is here and the undocumented need to feel part of us so long as the nation and its leaders lack the political will or the practical capacity to remove the undocumented root and branch. However, both with respect to 245(i) and the repeal of employer sanctions, national security is not the argument of choice advanced by proponents who seem to feel that such expressions of enlightened self-interest are somehow beneath the dignity of those who stand to benefit from them. America must, so this argument goes, be noble not merely pragmatic, though which sentiment over the long run is likely to sustain a progressive immigration policy is very much open to question.

While the restoration of 245(i) has much to commend it, it continues to promote the view that immigration is primarily an exercise in international social work designed to help the poor, deserving immigrant rather than to enrich and strengthen America. Beyond that, such a formulaic approach suffers from the same mechanistic rigidity that has unfortunately characterized too much of the recent national debate on immigration where discretion is distrusted in favor of bright lines and rigid distinctions. The return of 245(i) would not be necessary if Congress repealed the three and ten years bars to admission resulting from prolonged unlawful presence that it set down in 1996. Get rid of these and, in their place, articulate broad parameters that spell out what is and is not acceptable; give back to our decisionmakers, both in the INS and at US Consulates abroad, the ability to make judgments on equity and credibility. The advocates and foes of 245(i) would do well to realize that they are focusing on a symptom and ignoring the underlying malady, namely the continuation of a system that lacks the flexibility to achieve easily understood objectives in a consistent and effective manner while giving due respect to individual facts and special circumstances. While many wait for the real return of 245(i), there is, one suspects, a better way.

About The Author

Gary Endelman practices immigration law at BP America Inc. The opinions expressed in this column are purely personal and do not represent the views or beliefs of BP America Inc. in any way.