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Dear Editor:

The following may be a Section 245(i) alternative – everyone can love/hate:

If it seems that Section 245(i) is dead in the Senate, perhaps it is time to address fundamental safety concerns and the enforcement of immigration law in a way that makes common sense and accomplishes the goal of deterring immigration violations and perpetuating safe, legal immigration. The U.S. can perpetuate legal immigration by allowing people with overstays to be able to adjust – overseas.

An objection to S.245(i) is that it encourages the flouting of U.S. immigration laws. A second is that it permits those in violation of the laws to jump ahead of others waiting patiently overseas to legally come to the U.S. AILA and other immigrant advocates state that 245(i) only allows those who, but for overstays and other problems often caused by delays and INS’ internal problems, are eligible to adjust and would still be required to wait their turn. The problem with AILA’s response is that it underestimates the benefits of waiting for adjustment in the U.S. Those waiting outside the U.S. may have families and business reasons among others to want to be in the U.S. just as those who are in the U.S. want to remain and process here.

The answer is not to allow everyone into the country and have him or her adjust here. The answer is to encourage overseas interviews at the consulates to screen applicants for admission to the U.S. All applicants for any immigration benefits will have to go through extensive background checks and hopefully the Federal government departments charged with aspects of immigration policy will finally coordinate their databases and operations.

A problem is the 3 and 10-year bars for people who overstay or are out of status for over 6 months and 1 year respectively that are triggered upon leaving the United States. These bars drive people underground and are incentives to hide and evade the government.

What if something like Section 245(i) were formulated to allow people, without any criminal backgrounds or removal orders, etc., to apply for adjustment of status overseas? Such may be an incentive for illegals to leave the country and wait their turn in line if they know that they will not be barred from 10 years from returning legally.

The 3 and 10 year bars are supposed to be a deterrent to overstaying – but are they really such, or are they a deterrent to leaving?! As the country cracks down on immigration violations, it will be increasingly difficult (we hope) to enter the country illegally. Perhaps for people without orders of removal, those who are out of status for 6-12months can be barred for 6-12 months, instead of the 3 years, pay a $1000 fine, and process overseas, and those out of status for over 1 year can be subject to a 1 year bar – enough to be the deterrent against overstaying but perhaps less severe so that people will leave the country to process overseas.

I believe this may be a sensible solution for all sides considered, which takes into account the need to have U.S. immigration laws enforced and respected and the need to take control of an illegal population that only has an incentive to hide from the law, rather than obey it. Any thoughts or suggestions are welcome.

Ross Brady, Esq.