Immigration and Nationality memo, Mar 12, 2002

Memo To: RLE, SLK From: WPG, PSM Re: H.R. 1885 extension of section 245(i) provisions in the Immigration and Nationality Act Date: 3/12/2002 Back Ground Section 245 of the Immigration and Nationality Act of 1952 (8 U.S.C. 1101 et. seq.) permits an alien who is legally but temporarily in the United States to adjust to permanent resident status if the alien becomes eligible on the basis of a family relationship or job skills, without having to go abroad to obtain an immigrant visa. Section 245 was originally limited to aliens who were in the U.S. legally. In 1994, Congress enacted a 3-year trial provision (§§245(i)) authorizing adjustment status to aliens living in the U.S. illegally to adjust status once they became eligible for permanent residence, provided they paid a penalty fee of $1000. Without 245(i), the penalty would be harsh. These people would still be eligible for lawful permanent resident status, but in order to get it, they would have to return to their home countries and wait for 3 or 10 years (or, in a few cases, forever), depending on how long they overstayed their visas, before they could return to the U.S. 24 5 (i) represents a Congressional judgment that this is too harsh a penalty to impose on these people and their families. A $1000 penalty is a serious punishment, and it fits the "crime" of overstaying a visa far better than breaking up a family for 3 or 10 years. The FY 2001 Consolidated Appropriations Act (P.L. 106-554) extended the amnesty for a short time, which expired on April 30, 2001 and required the individual to have been in the U.S. prior to December 21, 2000. INS, however, failed to issue regulations in a timely manor affording eligible immigrants the statutorily required four months to file petition documents. In response to the 245(i) amnesty expiration and delay in INS regulation release, Congressman George Gekas (R-PA) introduced H.R. 1885, The Immigration Extension bill. This bill extends the filing deadline to August 15, 2001 for qualifying alien children, spouses, and employees who filed a change of status petition after April 30, 2001. Further, these aliens must demonstrate that a familial relationship existed, or the labor certification was filed, before August 15, 2001 . The House passed H.R. 1885 on an overwhelmingly bipartisan vote (336-43) on May 21, 2001. The Senate agreed by unanimous consent on September 6, 2001. Final passage on the bill was scheduled for a suspension vote on September 11, 2001. Present Situation The House amended the base text for H.R. 1885, given the time lag caused by the September 1 1 attacks, by extending the time illegal immigrants may apply for legal residence while remaining in the United States until November 30, 2002 or 120 days after INS issues final procedural regulations. In addition, the amendment clarifies that the familial relationship that had to be established by August 14, 2001, is the basis of such petition for classification, i.e., the marriage to the U.S. citizen or permanent resident. Also, the amendment makes a technical change to make clear the date the labor certification had to be filed by was August 14, 2001.