VISA SPOTLIGHT: THE NEW 245(i) A deal to partially extend provisions in Section 245(i) of the Immigration and Nationality Act has been reached by Congress and the President has signed the bill. Section 245(i) allows persons otherwise immediately eligible to apply for adjustment of status to permanent residency but for having previously violated their status in the United States to apply and pay a $1000 penalty fee. The provision was added into the INA in 1994 and was set to expire on September 30th of this year.
The 245(i) compromise includes the following:
- Section 245(i) will only be available to persons who file immigrant visa petitions and labor certifications prior to January 14, 1998. Derivative spouses and children are included and as long as the principal applicant applied for an immigrant visa or a labor certification before January 14th, they will be able to later apply under Section 245(i)
- Section 245(o), which also expired on September 30, 1997, will sunset right away. This provision would normally require a person who has previously violated his or her status in the US who then chooses to process an immigration application at a US consulate to stay outside the US for 90 days.
- Employment-based permanent residency applicants will continue to be able to apply for permanent residency under INA Section 245(a) IF they have not been out of status for more than an aggregate of 180 days. This provision is a permanent change to the law and will not expire on January 14th.
The 245(i) deal was included in the appropriations bill funding the Commerce, State and Justice Departments. The Senate had included a permanent unchanged 245(i) in its version of the bill and the House had not included an extension at all. The appropriations bill's conference committee was left to the task of reaching a deal. Because the extension was tied up in a massive appropriations bill, the conference committee was unable to vote on an extension prior to the provision's September expiration date. Instead, the measure was temporarily extended several times via continuing resolutions. Advocates of a permanent extension were buoyed by an overwhelming vote in the House of Representatives on October 29th defeating a resolution that would have directed the conferees to vote to end Section 245(i). But immigration restrictionists in the House, including Reps. Lamar Smith (R-TX), Dana Rohrabacher (R-CA) and Brian Bilbray (R-CA), were able to convince the committee that 245(i) was not worthy of being extended. The committee initially was prepared to end 245(i) without a grace period (i.e. the law would take effect on Friday instead of in January), the law would have only included visa petitions and not labor certifications, and derivative beneficiaries would not have been grandfathered.
During the course of the 245(i) limbo period, the INS allowed skeletal filings of immigrant visa petitions to be filed and kept local INS offices open until midnight on days when continuing resolutions were set to expire. The INS has not yet issued an opinion on whether skeletal filings will continue to be accepted between now and the January 15th deadline.
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