Immigration: Adjustment to Permanent Resident Status Under Section 245(i)

Publication Date: April 2002

Publisher: Library of Congress. Congressional Research Service

Author(s):

Research Area: Population and demographics

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Abstract:

The Senate may again consider extending a controversial immigration provision known as §245(i). On March 12, 2002, the House passed such an extension. Section 245(i) of the Immigration and Nationality Act was first enacted as a temporary provision in 1994 and has been extended several times since then. It enables unauthorized aliens in the United States who are eligible for immigrant visas based on family relationships or job skills to become legal permanent residents (LPRs) without leaving the country, provided they pay an additional fee. Before an alien can apply to adjust to LPR status, the alien must have an approved immigrant visa petition and must have a visa number immediately available to him or her. Currently, to be eligible to adjust status under §245(i), an unauthorized alien must be the beneficiary of an immigrant petition or labor certification application filed by April 30, 2001. An unauthorized alien whose petition or application was not filed by April 30, 2001 must go overseas to obtain a visa.

Section 245(i) became more significant after 1996, when Congress enacted a law containing a provision known as the "3 and 10 year bars." Now an alien who is unlawfully present in the United States for more than 180 days and then leaves the country is barred from re-entry for either 3 or 10 years, depending on the length of the illegal stay. By enabling eligible aliens to become LPRs without departing the country to obtain visas, §245(i) shields them from the effects of these bars.

Bills before the 107th Congress would extend the deadline under §245(i) for filing immigrant petitions or labor certification applications. In September 2001, the Senate amended and passed a §245(i) bill (H.R. 1885). As amended by the Senate, H.R. 1885 would extend the filing deadline to the earlier of April 30, 2002, or the date that is 120 days after the Attorney General issues final regulations. In March 2002, the House passed H.Res. 365, in which it concurred in the Senate amendment to H.R. 1885 with additional amendments. The House amended the Senate-passed §245(i) language to extend the filing deadline to the earlier of November 30, 2002, or the date that is 120 days after the Attorney General issues final regulations. In addition, both the House-passed and Senate-passed bills would add new restrictions to §245(i). In the case of family-sponsored immigrant petitions filed after April 30, 2001, for example, both bills would amend §245(i) to require the alien beneficiary to demonstrate that the underlying family relationship existed prior to August 15, 2001. With respect to the §245(i) extension provision approved by the House in H.Res. 365, the Immigration and Naturalization Service has estimated that there would be approximately 300,000 potential beneficiaries in total.

Section 245(i) sparks heated debate. Supporters characterize it as a humane, pro-family measure that enables prospective immigrants present in the United States to remain with their families while they go through the process of becoming LPRs. Opponents counter that §245(i) is an amnesty provision that rewards lawbreakers and encourages illegal immigration.

This report will be updated as legislative developments occur.