NumbersUSA.com fact sheet What Section 245(i) actually does Statements from the White House, Members of Congress, the news media, and talk show hosts about Section 245(i) of the Immigration and Nationality Act have consistently been inaccurate about how it works and who benefits from it. To help prevent future mistakes, NumbersUSA.com has prepared this fact sheet. The information is based on analysis of the legislative proposal to re-enact Section 245(i) that is contained in H.Res. 365, which is now pending in the Senate. Who is eligible for Section 245(i) adjustment of status? In nearly all cases, a person must be an illegal alien to benefit from Section 245(i). There are two major kinds of illegal aliens who benefit: (1) Those who entered the country illegally. (2) Those who entered legally on visas but then violated the terms of their visa. [What about people who are here legally and want to change their status? Another part of the law already on the books – Section 245(a) – makes it possible to adjust to legal permanent resident status if an alien is in the United States with a valid visa or if his/her visa has expired through no fault of the alien (e.g., because of INS processing delays).] The only aliens who are eligible for adjustment of status under Section 245(i) are aliens who meet all of the following five criteria: The alien must fall within at least one of the following categories: Aliens who entered the U.S. without inspection (i.e., entered the country illegally); Alien crewmen; Certain aliens who accept employment without authorization to work in the United States, aliens who are in “unlawful immigration status,” and aliens who have intentionally overstayed temporary visas; Certain aliens who are admitted to the U.S. without a visa in order to pass through the U.S. to a contiguous country (i.e., aliens “in transit”); Certain aliens who entered without a visa as tourists or business visitors under the Visa Waiver program; Aliens admitted as “S” nonimmigrants in order to provide information in criminal cases; Aliens who are deportable for having engaged in terrorist activities (under 8 U.S.C. 1227(a)(4)(B)) -- however the INS has regulations that make these terrorists ineligible; Aliens who are not in lawful nonimmigrant status and who are petitioning for an employment-based green card; or Aliens who were employed without authorization or who otherwise violated the terms of a nonimmigrant visa. The alien must have been physically present in the U.S. on December 21, 2000, in order to qualify for adjustment (there is no requirement that the alien have been continuously present since then). The alien must have a qualifying sponsor. Sponsors may include (1) an adult relative (spouse, sibling, parent, child) who is a U.S. citizen, (2) a legal permanent resident of the U.S. who is a spouse of the alien, or who is the parent of an alien who is the unmarried adult child, or (3) an employer. Applicants being sponsored by relatives must be able to show that the qualifying family relationship existed by August 15, 2001. Applicants being sponsored by employers must be able to show that the employer filed a Labor Certification Application on their behalf by August 15, 2001. The alien must apply for adjustment of status by November 30, 2002, or four months from enactment of H. Res. 365, whichever comes first, and pay a fine of $1,000 (some aliens, including minor children, are exempt from the fine). Technically, 245(i) is an amnesty from penalties for unlawful actions When an illegal alien walks into an INS office to apply for a green card under Section 245(i), that alien will be forgiven the lawbreaking that made him or her an illegal alien, in exchange for a $1,000 fee. INS regulations excuse 245(i) applicants from the normal penalties that may be levied against aliens found to be in this country illegally, including deportation and temporary bars on legal re-entry. Technically, 245(i) not an amnesty that rewards with permanent residency Once an alien applies for a green card under Section 245(i) at the INS office, he or she will be placed on the visa waiting list, along with all the prospective immigrants who apply at a consular office abroad. Depending on the applicant’s country of origin and the immigration category for which he or she is applying, it may be years – even decades – before a green card becomes available and the applicant is given the legal right to live in this country permanently. From the day an illegal alien applies under Section 245(i) until the day a green card becomes available, the alien remains in illegal status as long as he or she remains in the United States. A Section 245(i) application does not change the fact that the applicant is here illegally. Technically, Section 245(i) applicants can be picked up for deportation proceedings the day after they apply for adjustment. But 245(i) is a ‘de facto amnesty’ that rewards with permanent residency The operating policy of the INS is to treat illegal aliens who have applied for Section 245(i) adjustment as if they already are legal permanent residents – even though it may be years before they actually are legal. If the INS apprehends an illegal alien and subsequently finds that he has applied for adjustment under Section 245(i), the INS will almost never deport that illegal alien unless he has committed a non-immigration-related crime. Aliens who abide by our immigration laws and apply from abroad have to wait in their home country for years until they get to the top of the visa waiting list and a green card becomes available. The reason there is a waiting list is because there are limits on how many immigrants can come each year in most immigrant categories. Without those limits, surveys suggest, several million people would enter the U.S. each year. More than three million people currently are waiting their turn for a green card. Section 245(i) rewards illegal aliens with a de facto amnesty, since those who obey our laws must wait in their home country until a green card becomes available, while those who violate the law get to wait in the United States. If you have any information that suggests we have made an error on this fact sheet, please contact Rosemary Jenks, Director of Government Relations for NumbersUSA, at (202) 543-1341. We will make any warranted changes and re-contact everyone who receives this document, because our most important goal is accuracy. GO BACK TO THE TOP OF THE PAGE ERROR: Section 245(i) helps aliens who are here legally COMMON MISTAKES HOW THE LAW WORKS Pres. Bush’s mistake “I want to show our friends, the Mexicans,that we are compassionate about peoplewho live here on a legal basis, that we don’t disrupt the families for people who are here legally. If someone is living here legally, they won’t have to leavethe country in order to stay with their family.” -- Mr. Bush arguing for Section 245(i), “Senate urged to grant amnesty,” WashingtonTimes, March 20, 2002. The Section 245(i) provision being pushed by President Bush applies almost exclusively to aliens who entered the U.S. illegally, who became illegal by overstaying a nonimmigrant visa, or who entered as visitors without visas from a Visa Waiver country and then decided to illegally stay. Another part of the law called Section 245(a) – already in place – permits aliens in the U.S. on valid visas to apply for green cards. The people to whom Mr. Bush refers are already cared for. Chicago Tribune’s mistake [Numerous media have repeated the President’s mistake as a matter offact.] “Bush pushed Congress to approve Legislation that would ease some immigration rules, allowing immigrants living legally in America to renew their green cards without returning to their home countries.” “Bush details border plan with Mexico,” by BobKemper, Chicago Tribune, March 22, 2002 Applicants for Section 245(i) adjustment are not seeking to “renew” their permanent resident status (or green cards). Instead they are applying for a green card for the first time, and they are applying under 245(i) specifically because their violation of U.S. law makes them ineligible to adjust under Section 245(a). ERROR: Section 245(i) excludes terrorists and thoroughly screens all illegal alien applicants COMMON MISTAKES HOW THE LAW WORKS The House GOP Conference’s mistake “245(i) extensions do NOT benefit terrorists or criminals. Current law provides clearly and specifically that the 245(i) waiver is unavailable topeople who are excludable on these grounds, and the screening (including fingerprints, etc.) for adjustment of status under 245(i) is just asthorough as the screening overseas applicants get.” “Truth About 245(i) Extension,” House GOP Conference Press Office, March 12, 2002 In fact, the statutory list of aliens who are eligible for 245(i) adjustment specifically includes aliens who entered without inspection (a misdemeanor) and aliens who have been found deportable for engaging in terrorist activities. While the screening of 245(i) applicants is supposed to be as thorough as overseas screening by State Department Consular officers, there are two critical differences with 245(i) applicants: 1) any screening that is done is done while the alien is residing in the U.S., rather than before the alien is admitted to the U.S.; and 2) the INS, with its massive processing backlog and paper-based processing system, is responsible for screening these applicants. ERROR: Section 245(i) is for aliens who lost status because of INS delays COMMON MISTAKES HOW THE LAW WORKS Rep. Dick Armey’s mistake "People who do comply with our laws and are here legally and are trying to maintain their legal resident status and are failed by a dysfunctionalagency that could not get the work done should not be separated from their family and punished." “Sessions says many oppose amnesty plan,” by Joyce Howard Price, Washington Times, March 23, 2002 Aliens who make an effort to maintain their legal status, but become illegal because of INS processing delays, are not eligible to adjust under Section 245(i) and do not need it. They already can adjust under Section 245(a) instead. Moreover, aliens who follow the law and apply from abroad are processed by the State Department; only those who apply from within the U.S. are processed by the INS. The INS currently has a processing backlog of over four million. Adding hundreds of thousands of new applications to the backlog is not likely to improve INS efficiency. Rep. Ros-Lehtinen’s mistake “If they had been in the country illegally, it is because (the INS) has been slow and dragging its feet in processing these applications … [If they came illegally, they can apply only if they] have since been married to an American citizen or who have been provided with a type of employment that would give them a special category. ”Interview with Brit Hume, FOX News, March 21, 2002 Far more than illegal alien spouses would benefit. Illegal aliens can also use 245(i) if they are parents, adult children and siblings of U.S. citizens, and spouses and adult children of legal permanent residents. ERROR: Without Section 245(i) illegal aliens who return home to apply for a greencard would be barred for re-entry for 3-10 years COMMON MISTAKES HOW THE LAW WORKS Senator Maria Cantwell’s mistake"As you may be aware, under the Illegal Immigration Reform and Immigrant Responsibility Act (IIRIRA), immigrants who are eligible for legal residency, but who are currently in the country illegally, are required to leave the country for a period of ten years before applying for legal status." Letter to constituent, March 18, 2002 The ten-year bar on legal re-entry applies only to aliens who are actually identified and processed by the INS as illegal aliens. If an alien’s name and immigration violations are not in an INS database, that alien is free to leave the U.S. and apply immediately for a green card from his/her home country. GO BACK TO COMMON ERRORS   What the law actually says 8 U.S.C. 1255. Adjustment of status of nonimmigrant to that of person admitted for permanent residence 8 U.S.C. 1227. Deportable aliens (a) Classes of deportable aliens Any alien (including an alien crewman) in and admitted to the United States shall, upon the order of the Attorney General, be removed if the alien is within one or more of the following classes of deportable aliens: (1) Inadmissible at time of entry or of adjustment of status or violates status (2) Criminal offenses (3) Failure to register and falsification of documents (4) Security and related grounds (A) In general Any alien who has engaged, is engaged, or at any time after admission engages in - (i) any activity to violate any law of the United States relating to espionage or sabotage or to violate or evade any law prohibiting the export from the United States of goods, technology, or sensitive information, (ii) any other criminal activity which endangers public safety or national security, or (iii) any activity a purpose of which is the opposition to, or the control or overthrow of, the Government of the United States by force, violence, or other unlawful means, is deportable. (B) Terrorist activities Any alien who has engaged, is engaged, or at any time after admission engages in any terrorist activity (as defined in section 1182(a)(3)(B)(iii) of this title) is deportable. H.RES.365 Enhanced Border Security and Visa Entry Reform Act of 2002 (Agreed to by the House) SEC. 607. EXTENSION OF DEADLINE FOR CLASSIFICATION PETITION AND LABOR CERTIFICATION FILINGS. (a) IN GENERAL- Section 245(i)(1) of the Immigration and Nationality Act (8 U.S.C. 1255(i)(1)) is amended-- (1) in subparagraph (B)-- (A) in clause (i), by striking `on or before April 30, 2001; or' and inserting `on or before the earlier of November 30, 2002, and the date that is 120 days after the date on which the Attorney General first promulgates final or interim final regulations to carry out the amendments made by section 607(a) of the Enhanced Border Security and Visa Entry Reform Act of 2002; or'; and (B) in clause (ii) by striking `on or before such date; and' and inserting `before August 15, 2001;'; (2) in subparagraph (C), by adding `and' at the end; and (3) by inserting after subparagraph (C) the following: `(D) who, in the case of a beneficiary of a petition for classification described in subparagraph (B)(i) that was filed after April 30, 2001, demonstrates that-- `(i) the familial relationship that is the basis of such petition for classification existed before August 15, 2001; or `(ii) the application for labor certification under section 212(a)(5)(A) that is the basis of such petition for classification was filed before August 15, 2001;'. (b) EFFECTIVE DATE- The amendments made by subsection (a) shall take effect as if included in the enactment of the Legal Immigration Family Equity Act (114 Stat. 2762A-142 et seq.), as enacted into law by section 1(a)(2) of Public Law 106-553. BACK TO HOW THE LAW ACTUALLY WORKS BACK TO COMMON ERRORS BACK TO WHAT THE LAW SAYS