Immigration: Adjustment to Permanent Residence Status under Section 245(i)
Publication Date: February 1998
Publisher(s): Library of Congress. Congressional Research Service
Under § 245 of the Immigration and Nationality Act, an alien in the U.S. who, on the basis of family relationship or job skills, becomes eligible for permanent resident status may adjust to that status in the United States without having to go abroad to obtain an immigrant visa. Historically, only those aliens who were here legally (e.g., as a student or a temporary skilled worker) could adjust status under § 245. In 1994, however, Congress enacted § 245(i). That provision, which was set to expire on September 30, 1997, allowed illegal aliens in the U.S. to adjust status under § 245 once they, because of family relationships or job skills, became eligible for permanent residency, provided they paid a surcharge fee.
During debate on extending § 245(i), some viewed extension as an incentive to maintain illegal residency and as a “loophole” to 1996 immigration reforms. Proponents of extension cited the money made available for immigration enforcement by the surcharge fee, and the utility of § 245(i) for allowing families that include an illegal alien member to remain intact.
The question of extending § 245(i) was resolved in the Commerce, Justice, State, and the Judiciary (CJS) Appropriations Act, FY1998 (P.L. 105-119). That Act terminated § 245(i), but did so with a generous “grandfather” provision. Now only a beneficiary of an immigration preference petition or a labor certification application that was filed on or before January 14, 1998, is eligible for adjustment under § 245(i) (along with his or her spouse and minor children). At the same time, a new subsection (k) has been added to § 245 to allow an alien without legal status to adjust to permanent residency under employment-based categories (without paying a surcharge) in certain conditions. Adjustment under this provision is limited to aliens who (1) are here under a lawful admission when they file for adjustment and (2) have been out of status or working without authorization for fewer than 180 days.