Section 245(i): "Adjustment of Status"

December 2011

Section 245 of the Immigration and Naturalization Act specifies conditions under which aliens already in the United States in a legal nonimmigrant status may change their status to legal permanent residence (“green card” status) while remaining in the United States. A sub-paragraph of that provision, Section 245(i) added to the law in 1994 provides for the transition to legal residence for an alien who, “entered the United States without inspection,” i.e., illegal aliens. Even though that provision remains in the law, since 2001 it ceased to be available for illegal aliens who did not already have a petition for adjustment of status filed by a family sponsor or employer sponsor.

The following is a description of the termination of the 245(i) amnesty provision and the reason that it was terminated.

The Genesis and Suspension of 245(i)

The measure to provide illegal aliens a means to gain legal permanent residence — a form of amnesty — was controversial ever since it was first enacted in 1994. Prior to the creation of this provision, illegal aliens were required to depart the United States in order to apply for an immigrant visa. 245(i) was designed to provide illegal aliens a means to gain legal residence without having to leave the United States, thus sparing them the cost of the foreign travel.¹ The adoption of the provision also meant an end to the circumstance that if the alien proved to be ineligible for an immigrant visa the alien would be barred from returning to the United States. With 245(i) in force, if the alien was found to be ineligible for legal status by the U.S. immigration authorities (Immigration and Naturalization Service at that time), the alien would be in a position to continue to stay illegally in the United States.

A battle was fought in Congress in 1997 over whether to extend or eliminate the 245(i) adjustment of status provision. The Senate adopted an extension with little debate, but the House opposed the measure. In the end, the provision was allowed to expire, but only after illegal aliens already in the country and already sponsored by an employer or family member were still able to benefit from the provision as a result of a grandfather clause.

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. The congressional Republican leadership apparently decided that a short-term revival of Sect. 245(i) would remove the amnesty issue from campaign politics.

The effect of the revival of Sect. 245(i) was to continue 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 had a sponsor for their permanent residence status. 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 April 30 deadline approached.

The issue was rejoined in 2002 in the 107th Congress over a renewed extension of Section 245(i). In the end, 245(i) was not reauthorized and new applications died as of 2001.

How 245(i) Benefitted 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 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 or who are unlikely to be able to support themselves and their family. That process was subverted in 1994 by Section 245(i) because it allowed persons who entered or stayed illegally in the United States to adjust their status to legal residency 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 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 immigration official. Donald Stader, the director of the State Department’s visa fraud prevention program was 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) Nullified the Penalty for Illegal Immigration

In addition, Section 245(i) undermined the intent of Congress to penalize illegal aliens for violating the immigration law. Congress adopted penalties that required a period of foreign residence before an illegal alien could legally reenter the United States.² Those penalties were enforceable only when the alien was outside of the United States — which did not happen when the alien could adjust status without leaving toe country.