Congress Considers Extremely Limited Extension of 245(i)
Posted Sep 14, 2001

On Thursday, September 6, 2001, the U.S. Senate and House of Representatives ("House") reached an extremely unsatisfactory compromise on an extension of 245(i). The Senate passed their bill on the evening of September 6, while the House was expected to pass a similar extension on Monday or Tuesday, September 10 or 11, 2001. However, we do not at this time have any definite news on whether the House has passed the provision, so we will continue to monitor these developments and provide further updates in a subsequent MurthyBulletin.

Our article in the August 17, 2001 issue of the MurthyBulletin entitled, House and Senate Committees Pass Limited Extension of Section 245(i), described a Senate bill known as S.778 and a House bill known as H.R.1885. Both of these bills included a new restriction, requiring beneficiaries to demonstrate that the family or employment relationship existed on or before April 30, 2001 (House bill) or date of enactment (Senate bill). Significantly, this new requirement was retroactive to January 14, 1998. The House approved an extension for four months while the Senate approved an extension until April 30, 2002.

The compromise reached on September 6, 2001 makes some changes to the above, but still has serious problems. This new compromised version of the Bill states that the family relationship must have existed as of August 15, 2001. While the August date is better than a retroactive requirement to January 14, 1998, of course the August 15, 2001 date has already passed and therefore this extension does not provide any opportunity for those with valid, but yet unmarried relationships, to apply.

Even worse is the compromise for employment-based applicants. If Labor Certification (LC) is required, as in the vast majority of employment-based green card cases, the LC must have already been filed as of August 15, 2001. Many people were awaiting the 245(i) extension before filing for LC, rather than spending time and money to file an application that may turn out not to be viable. Of course, many people filed the applications just in case. But many, especially those with limited funds, reasonably chose to wait.

The duration of the extension is also unclear but it appears the extension is to April 30, 2002. However, it is also possible that the extension may be only until four months after regulations are enacted. It appears that date is a deadline for filing either the family-based petition (Form I-130) or, for those few employment-based cases not requiring LC, the employment-based petition (Form I-140). As mentioned above, for cases requiring LC the bill requires that LC to have already been filed by August 15, 2001.

Again, as of press time, the legislation has not yet been passed and it is still possible that changes will be made before passage. In the meantime, readers may wish to contact their Senators and Representatives via the Congressional switchboard, 202-224-3121 and/or the White House via the White House Comment Line, 202-456-1111. We are not sure what impact the incidents occurring on September 11, 2001, will have on the agenda of Congress for the near future. We will provide further details in the MurthyBulletin as they become clear.