House & Senate Committees Pass Limited Ext. of Section 245(i)
Posted Aug 17, 2001

A limited extension of 245(i) has now been passed by both the House and Senate Judiciary Committees. As mentioned in prior MurthyBulletins, these Bills are not the law until both the House and the Senate vote on it and the President signs the final Bill into law. We are not at that stage yet. The American Immigration Lawyers Association (AILA) has already expressed serious reservations about these Bills.

The versions passed by the Senate (S.778) and by the House (HR. 1885) both include a new provision requiring beneficiaries to demonstrate that the familial or employment relationship existed on or before April 30, 2001 (House bill) or date of enactment (Senate bill). Significantly this new requirement is retroactive to January 14, 1998. The House approved an extension for four months while the Senate approved an extension until April 30, 2002.

For those not familiar with Section 245(i), we have had several articles in the MurthyBulletin on this subject. To briefly summarize it here, Section 245(i) of the law was enacted in order to enable eligible people to adjust their status in the U.S. when their immigrant visas became available, who otherwise would have had to leave the U.S. for a three- or ten-year period, by virtue of not maintaining lawful status in the U.S. Section 245(i) expired in January 1998 and was temporarily reinstated for approximately a four-month period by the Legal Immigration and Family Equity (LIFE) Act, enacted on December 21, 2000. The deadline for filing petitions under LIFE, for a family member or an employee, accordingly expired on April 30, 2001.

AILA has already submitted a formal statement opposing the new requirements, which they believe would require employers to violate the law by requiring them to have employed those not lawfully allowed to work in the U.S. Existing law merely requires that an employer makes a job offer at the time the worker adjusts status to lawful permanent resident.

AILA was also concerned that the requirement for a familial relationship to exist on or before April 30, 2001 may preclude those in innocent, bona fide relationships from applying because they have not yet married. Furthermore, the deadline could preclude good faith applicants who do not know what or when they need to file before a certain artificial deadline.

The requirement is also retroactive, applying to any application submitted after January 14,1998. AILA has noted that this will mean that thousands of applications could be invalidated because employers who followed the law at the time submitted applications on behalf of workers they had not yet hired. Potential administrative and legal complications are also likely to arise if the retroactive language of the provision is applied to invalidate thousands of otherwise properly filed petitions. One example is how INS will deal with refunding thousands of dollars in filing fees. In sum, AILA opposes any extension of Section 245(i) that includes a provision requiring employers to violate the law and that enacts this provision retroactively.