Section 245(i): "Adjustment of Status" Mini-Amnesty

Recent Developments

A major battle was fought in the 107^th Congress over an extension of Section 245(i). 245(i) was not reauthorized in 2002.

This measure to forgive immigration lawbreakers and reward them with the permanent residence they sought to gain by breaking the law — a form of amnesty — has been controversial ever since it was first created in 1994 to give illegal aliens a means to gain legal residence without having to leave the United States.

An earlier battle was fought in Congress in 1997 over whether to extend or eliminate the adjustment of status loophole for illegal aliens — INA Section 245(i). The Senate adopted an extension of the provision with little attention to the issue, and the House opposed the measure, although on the only vote taken on it, a majority appeared to support continuing the measure.

However, the issue was obscured by the fact that some who voted against the effort to kill 245(i) insisted they simply did not want to tie the hands of the conference committee members who would decide the measure's fate. In the end, Section 245(i) was allowed to die, but only after illegal aliens already in the country and sponsored by an employer or family member were protected by a grandfather clause.

Then, in 2000, Congress revived Section 245(i) for a limited period ending April 30, 2001. This action came during a battle between the Clinton Administration and congressional Democrats pushing for a broad amnesty for illegal aliens, and opposition from congressional Republicans. At the time the Bush presidential campaign was attempting to woo Hispanic voters, who are the most interested in amnesty-type provisions for illegal aliens in the United States. The congressional Republican leadership apparently decided that a short-term revival of Sect. 245(i) would remove the amnesty issue from campaign poltics.

The effect of the revival of Sect. 245(i) has been to allow all of the illegal aliens who missed out on the 1986 general amnesty or the subsequent limited Central American and Haitian amnesties or who have arrived more recently to gain legal residence without leaving the country if they have found a sponsor for their permanent residence status, such as a spouse or employer. The possibility to gain sponsorship through marriage to a U.S. citizen or legal resident led to widespread instances of last-minute marriages as the clock ran down on the April 30 deadline.

The amnesty movement has not been content with the opportunity for legalization by hundreds of thousands of illegal alien residents. Although Sect. 245(i) expired on April 30, it seems likely to be revived for at least an additional temporary period, because the Bush Administration and namy members of Congress have lined up behind that idea.

The House of Representatives adopted HR. 1885 on May 21 to extend the loophole for an additional four months. Other members of Congress continue to push for restoring it as a permanent provision. The members of Congress who are opposed to this provision, like Rep. Weldon (R-FL) are in a minority. Weldon wrote us, “I am concerned that this bill sends the wrong message to those who have and will enter our country illegally. There is a very long line for those who are waiting patiently to immigrate to the U.S. legally. This bill sends a message to those who are waiting to enter the U.S. legally, that there are no real penalties for entering the U.S. illegally.”

How a Measure Adopted by Congress in 1994 Helps Illegal Aliens

Immigration control historically has been exercised by the nation's consular officers abroad and by immigration inspectors at the port of entry. Their job has been to protect Americans from unwelcome intending immigrants who try to pass themselves off as nonimmigrants. They are charged by the law with screening out persons with serious criminal records or communicable diseases, for example, or who are likely to be unable to support themselves and their family. That process was subverted in 1994 when a measure (Section 245(i) of the Immigration and Nationality Act — INA) was adopted that allowed persons who entered illegally or who came as nonimmigrants to adjust their status to legal residency in the United States without having to go through the screening process of the U.S. consular officers in their home country, where adverse information about the alien is more likely to be known.

The INS is an Unreliable Substitute for Consular Screening

Experience clearly establishes that the INS is an unreliable custodian of the adjustment of status authority. The deception of Congress by the INS at the Krome Detention Center in Miami, the failure to adequately screen citizenship applications, and the deception of Congress in 1995 into believing that there was a declining level of immigration when, in fact, the level was rising — a lower number of immigrants was not due to a decreased demand, but rather longer waiting lists due in large part to the inability of the INS to administer its Section 245(i) responsibility — all point to the need to take this authority away from the INS by permanently removing the provision from the law.

State Department Visa Screening is Preferable

The consular officers abroad and their experienced foreign national employees offer unmatched expertise in host country local documents, police records, language, and procedures. The consular officer's knowledge of local conditions, fraudulent document operations, political extremist groups and social institutions allows them to exercise the immigrant screening function far better than a U.S.-based INS employee whose job is normally facilitating U.S. citizens and residents or businesses in their efforts to sponsor immigrants. Donald Stader, the director of the State Department's visa fraud prevention program is quoted in Immigration Review as noting that the 245(i) provision is “a paper exercise that makes a mockery of our law.”

Section 245(i) Undermines Congress's Efforts to Deter Illegal Aliens

In addition, the adjustment of status provision runs counter to the intent of Congress to tighten laws against illegal aliens. A provision adopted in the 1996 immigration reform bill — INA Section 212(a)(9)(B) — enacted new disincentives to persons entering the country without permission. Aliens who have violated our immigration law, are faced with waiting periods outside the United States as a form of penalty that must be paid before they are eligible to return to the United States. However, the Section 245(i) adjustment of status provision, by letting aliens unlawfully present in the United States become lawful residents without having to leave the country, effectively nullifies those measures.

Adjustment in the U.S. is Unfair to Other Immigrants

Although it may be more inconvenient and expensive for aliens who are in the United States and eligible to become a legal permanent resident to have to apply for the immigrant visa outside of the United States, that is not a sufficient reason for giving them an advantage that is unavailable to other intending immigrants who are waiting abroad for their opportunity to LEGALLY immigrate. Under the 245(i) provision, not only is the adjusting alien able to stay in the United States, he is given a work permit and allowed to legally work while the application is pending. After applying for adjustment, the alien may also become eligible for welfare benefits that are denied to illegal immigrants. By allowing adjustment of status to illegal and nonimmigrant aliens who are in the country, we send the message abroad that this is the preferred route to U.S. residence. That message undermines the deterrent effects against illegal aliens of the 1996 INA amendments.

Updated 7/02