Small changes to an immigration provision by Congress could impact millions of noncitizens in the United States and is not a new solution.
Congress has at its disposal one provision of law included in the Immigration and Nationality Act that, if minimally modified, would aid millions of noncitizens in the United States who do not have a pathway to permanent residency, also known as obtaining a "green card." The provision, Section 245(i) of the Immigration and Nationality Act, was first enacted by Congress in 1994 as a temporary avenue for noncitizens in the United States unable to adjust their immigration status due to working without valid authorization, overstaying a visa, or for entering the United States without inspection by Customs and Border Patrol, such as by crossing the United States-Mexico border.
As a temporary measure, Congress set an eligibility cut-off date in the original 1994 iteration, as well as the subsequent iterations in 1997 and 2000. In the latest version, a noncitizen qualifies for this form of relief by having a qualifying family-based or employment-based immigrant visa petition filed on their behalf on or before by April 30, 2001, paying a penalty fee, and meeting other requirements for obtaining permanent residence. One benefit of this provision included noncitizens being able to complete their adjustment of status process within the United States without leaving their job or triggering a reentry bar which would separate them from their families in the United States if they return to their home country. As part of the Illegal Immigration Reform and Immigrant Responsibility Act of 1996, three-year and ten-year bars were created to prevent noncitizens from re-entering the U.S. or applying for lawful status if they were unlawfully in the United States. If a foreign national overstayed their visa or otherwise fell out of lawful status, then depending on how long they stayed in the United States unlawfully would determine if they received a three-year or a ten-year bar on reentry. Less than one year of unlawful presence results in a bar of three years to reentry, while more than one year of unlawful presence results in a bar of ten years to reentry.
While supported by previous presidents like Bill Clinton and George W. Bush, the deadline passed in 2001 without an additional extension from Congress, leaving many noncitizens without access to a pathway to obtain a green card and the inability to leave the country and return without being barred and separated from their U.S. families for a minimum of three years. Fortunately, certain noncitizens are still able to benefit from the 2000 version if a qualifying petition was filed on their behalf on or before April 30, 2001. Finding these old petitions requires filing Freedom of Information Act (FOIA) requests as these petitions, if available, are at least 20 years old. But it would be life-changing proof to the principal beneficiary and even allows for noncitizens who were a derivative spouse or child at the time the petition was filed to benefit.
If Congress were to modify Section 245(i) with more recent deadlines of eligibility as performed in the past, or modify the provision for no eligibility deadlines, millions of noncitizens currently in the United States would be immediately eligible to adjust their immigration status, including recipients of Deferred Action for Childhood Arrivals ("DACA") or Temporary Protected Status ("TPS"). On the other hand, opponents of immigration reform are against proposals they view as resembling amnesty and remain on side of a highly divided area of law and topic of discussion across multiple platforms. Nonetheless, expanding Section 245(i) relief would not result in relief for every noncitizen in the United States and many would still be subject United States' immigration system that is currently suffering from mounting visa backlogs, unprecedented processing delays that have resulted in the loss of employment and lengthy periods of family separation, and an ever-growing list of legal challenges in immigration courts across the country.
This expansion would also address security concerns raised by opponents by allowing those who have never encountered the immigration system to undergo required background and security checks. Expanding Section 245(i) is a great option that has always been on the table in addition to current pending legislation in Congress presented by Biden like the American Dream and Promise Act of 2021, the Farm Workforce Modernization Act of 2021, and the United States Citizenship Act of 2021.
On April 22, 2021, the American Immigration Lawyers Association ("AILA") had its annual National Day of Action where immigration solutions, such as the extension of Section 245(i), were presented by AILA members to Democratic and Republican congressional members. As seen with previous pieces of immigration legislation, Democrats and Republicans will have to make compromises and continue the discussion to make decisions that impact millions of noncitizens currently living in the United States, especially with phrases like "comprehensive immigration reform" being tossed around by both sides for many years without major changes. Contacting congressional members of the House and Senate is the only way forward for extending Section 245(i) of the INA and reviving an old solution for modern times.
Originally Published by The Legal Intelligencer, 12 May 2021
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