Obtaining Legal Status under Section 245 (i) of the Law – For Some, there is No Deadline

Most undocumented immigrants that entered the U.S. without inspection, overstayed an admission, acted in violation of the terms of their status, or worked without authorization, are considered “out of status” and would normally not be able to complete the process to become a permanent resident in the U.S. without I.N.A. Section 245(i).  Most of these same individuals would be subject to the three and ten year bar to readmission if they were to leave the U.S. and process an immigrant visa at the US Consulate abroad. Under section 245 (i), an immigrant may apply for permanent residence based on a qualifying family relationship, or based on a qualifying job offer and by paying an additional $1,000 fee. With section 245 (i) immigrants can choose to process their immigrant visas in the U.S., rather than being required to do so at a U.S. Consulate abroad and subjecting themselves to a three or ten year bar to readmission.

As such, section 245 (i) is not an asylum law or a law that permits any unauthorized immigrant to legalize his or her status. Section 245 (i) simply permits those who would normally not be eligible to apply for permanent resident status because they overstayed a visa or entered without authorization to apply for permanent residence using either family or employment sponsors. Applicants under section 245 (i) must have a valid sponsor, either a qualifying U.S. citizen or U.S. Lawful Permanent Relative or a U.S. Employer willing to offer qualifying permanent employment.

Congress first added section 245 (i) to the Immigration and Nationality Act (INA) in 1995 as part of the Commerce, Justice, State Appropriations bill. Section 245 (i) went into effect in 1995 and was scheduled to sunset or expire on September 30, 1997. President Clinton twice extended the deadline, first to October 23, 1997 and again until November 7, 1997. Congress later extended Section 245 (i), until January 14, 1998, when it finally expired. During the 106th Congress, several bipartisan bills were introduced that would permanently reinstate section 245 (i) of the law. However, Section 245(i) was only temporarily reinstated into immigration law by the Legal Immigrant Family Equity Act (LIFE Act) enacted in 2000. The LIFE Act provided a window of four months during which time persons wanting to petition for a family member or employee had to file with the USCIS or DOL. USCIS failed to issue regulations regarding the law until March 2001, and so by the deadline, April 30, 2001, queues formed outside of U.S. USCIS District Offices as applicants attempted to ask questions regarding the program and submit their documents on time. As a result, many eligible applicants were unable to submit their paperwork on time.

For Congress and the Administration, Section 245 (i) is a convenient way to legalize masses of unauthorized immigrants without resorting to an amnesty, which has historically drawn a great deal of criticism for encouraging unauthorized immigration. While Section 245 (i) is not in effect at this time, immigrants that started a process to legalize their status via employment or family based petitions prior to April 30, 2001 are still eligible to take advantage of Section 245 (i) even if they no longer have the same family or employment based sponsor. For example, an immigrant that filed a Labor Certification prior to April 30, 2001 but lost the employer sponsor or received a notice of denial on this application can today legalize his/her status based on marriage to a US Citizen or via a new employer sponsor. These individuals are very fortunate and can legalize their status under Section 245 (i) of the law at anytime, there is no deadline.

To determine if you might be eligible to re apply under Section 245 (i), contact Melissa McNamee Venceslau to schedule a consultation.