April 9, 2002

     A congressional plan offering limited amnesty to illegal aliens would allow some post-September 11 detainees to delay deportation or even apply for green cards, according to advocates for tougher immigration laws.

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     Congress is considering allowing another round of applications under section 245(i) of the Immigration and Nationality Act, which lets those who are in the United States illegally, but who meet certain requirements, apply for legal status.
     Groups such as the Federation for American Immigration Reform (FAIR) and Numbers USA, which advocate immigration limits, say approving the new round of applications without first changing the underlying law will allow those being detained for terrorist activities to apply for permanent legal residency.
     "What you have is a statute on its face that says terrorists can apply for green cards, and have," said Mike Hethmon, FAIR's staff attorney.
     The law says terrorism is a deportable offense, but it also explicitly says anyone considered deportable for terrorist activities may apply for an adjustment of status.
     The Immigration and Naturalization Service has issued regulations to specify that suspicion of terrorism is still grounds for deportation, and an INS official who asked not to be named said the INS is following them.
     He and immigration lawyers said applicants must meet all of the other requirements of the law, including a background check.
     The INS has final discretion over any application for a green card, they said.
     "Section 245(i) does not operate independently of the long-standing provisions of our immigration laws, which make terrorists inadmissible to, and deportable from, our country," said Judy Golub, director of advocacy for the American Immigration Lawyers Association.
     The issue shouldn't be a deal-breaker on 245(i), said Greg Siskind, an immigration lawyer in Tennessee who publishes Siskind's Immigration Bulletin.
     "It seems to me it would be a pretty easy thing to fix. I see that as pretty much an argument people are making to blow a lot of smoke," he said.
     But groups pushing immigration limits said the inconsistency in the law would give a lawyer a good case. If Congress passes the 245(i) extension without changing the inconsistency, it will mean it has reaffirmed the law, and that would trump the INS regulations.
     "This isn't a secret; it's not an oversight anymore," Mr. Hethmon said. "If they go ahead and pass it as it is, the [detainees] can say the legislative intent is clearly to allow this to proceed."
     The 245(i) provision would apply to those who have entered the country illegally and to those who overstayed their entry visas and are now here illegally.
     The extension pending in Congress would require aliens to certify that by Aug. 31, 2001, their employer had filed a Labor Certification Application saying the job couldn't be filled by a current legal resident or that they had a qualifying family relationship by that date.
     In exchange for a $1,000 fine, 245(i) allows them to remain in the country while their application for permanent residency, a green card, is processed in the normal way. Without 245(i), they would have to return home and apply for a green card and, if the INS had recorded them as having been in the United States illegally, wait up to 10 years before applying.
     In the United States, the INS does the background check, while State Department consular officers do the checks overseas.
     The provision's opponents say consular officials have the language skills and tools to check into a person's background in their home country, while the INS does not. They also point to the INS' backlog of applications and recent revelations that it approved visa applications for two of the air pirates in the September 11 attacks.
     Estimates of how many people could apply under the extension vary widely. Immigration limit groups say at a minimum 200,000 would qualify because that's the number who were eligible but did not file their paperwork the last time around.
     But immigration lawyers say the number is much lower.
     Mr. Siskind said the provision pending in Congress is restrictive and would apply to about 10,000 people.
     The provision's backers also say it isn't an amnesty because it would apply to a limited group and requires a penalty fee.
     "If you don't think it's enough, raise the penalty fee," Mr. Siskind said, adding that previous application periods have pumped a lot of money into the INS, which can then be used for more enforcement.
     The 245(i) extension passed the House last month by a single vote, but its fate in the Senate is in doubt.

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Updated at 10:30 a.m.

Updated at 10:30 a.m.