Is 245 (i) open again and if not when will it re-open for people to apply?

Is 245 (i) open again and if not when will it re-open for people to apply?

Miami, FL -

Attorney Answers (2)

Stuart Jonas Reich

Stuart Jonas Reich

Immigration Attorney - New York, NY
Answered

245(i) was the provision that allowed people in the U.S. without status to Adjust Status to Permanent Residence inside the U.S. without leaving simply by paying a fine if an approvable-when-filed immigrant petition or labor certification had been filed before April 30, 2001 (that date that this law expired).

It has NOT been renewed since it expired in 2001, and it really isn't very likely, in this lawyer's opinion, that it will come back in exactly its old form any time soon.

This law has - probably unfairly - been tagged with the loaded term "amnesty" in the debate onre immigration, and bringing it back as it was isn't ally politically feasible, even though it makes a great deal or sense - prospective immigrants who clearly WANT to comply with the law and obtain legal status have no way to do so, and the fine was a great source of funds for a chronically underfunded federal agency.

The hope right now is that some provision for allowing people here without status to become legal will be passed as a part of some form of Comprehensive Immigration Reform ("CIR") later in 2009 or early 2010. Such a provision may be something like the old 245(i) but include higher fines, a requirement of proof that the person has paid taxes, perhaps and English language requirement, and maybe other requirements as well.

Alternatively, it may be nothing like this and require that people leave the U.S. and process through the U.S. embassy or consulate in their home country, but remove the penalties currently in place for leaving (the three- and ten-year bars to coming back).

The fact is, right now no one knows what form this will take or if it will happen at all.

But, the smartest thing to do if you want to see this type of reform is to actively contact your elected officials (your Representative, your state's two Senators and the President) to tell them that you support CIR with provisions to help the 12 million people here who currently have no way to become legal. Tell your friends and family to do the same.

Good luck to you and everyone in the situation of needing this kind of reform.

Scott Douglas Devore

Scott Douglas Devore

Immigration Attorney - West Palm Beach, FL
Answered

245(i) is often one of the most confused areas of immigration law. It is not an amnesty and it doesn't grant you status. All 245(i) is a mechanism that would allow a foreign national to pay a $1000 penalty on top of the normal filing fee and allow that person to adjust their status in the United States IF THEY ARE STILL OTHERWISE ELIGIBLE.

The ability to obtain your green card while in the United States as opposed to leaving the United States is very important. People who have unlawfully resided in the US for more than 6 months but less than one year are subject to a 3 year bar if they leave the US. People who have unlawfully resided for more than one year in the US are barred for 10 years if they leave the US. It is for these reasons that 245(i) is important. For example, if you had one person who entered the US without inspection (EWI) and another that was inspected and then fell out of status and both were married to a US citizens the outcomes of these case would be different as well as how the case would be processed. Assume that both had been in the US for more than one year unlawfully. Remember that one guy was once inspected on his visitors visa. The foreign national that was inspected can obtain his green card here even though he's out of status. The guy who entered illegally and who doesn't have the benefit of 245(i) would need to leave the US to obtain an immigrant visa (green card) at his home embassy once a visa petition is approved. The problem is if he lived here illegally for more than a year he would trigger the 10 year bar when he left the US to go to the embassy. If he werer 245(i) eligible he could pay the $1000 penalty and he would be treated like the guy who entered lawfully on his visitors visa and overstayed. The bar only attaches (becomes a problem) if one leaves the US before obtaining LPR stats. 245(i) is only mechanism. You still have to otherwise be eligible for the underlying benefit. In this case both were married to US citizen and the only difference was the inspection issue. Both marriages are good. In fact we could be talking about twin brothers who entered on the same day. One with a visa and one without.

245(i) isn't likely to come back soon. It is often misunderstood and has been labeled an amnesty by the anti-immigration lobby. It is not amnesty and doesn't grant status. All it does is allow people to adjust their status instead of consular processing. Both guys in the above example have the same facts with the exception of how they came to the US. Nobody is getting a greencard based on 245(i) alone. All 245(i) does is give you the option of going home to get it or pay the $1000. Wouldn't everyone pay $1000 instead of risking a 3 or 10 year bar? Of course they would.

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