245(I): What is it, and how does it benefit me?

By Paschal Obinna Nwokocha
Attorney at Law

To clear all misconceptions, the Legal Immigration and Family Equity Act of 2000 (LIFE Act), which President Clinton signed into law on December 21, 2000, is not a general amnesty law. It does not give everyone green cards, work permits and social security numbers. Before the end of 2000, there were negotiations between the Clinton White House and Congress on granting amnesty to a class of people who have been in the country illegally, but that did not materialize. Now that we have cleared this misconception, what is section 245 (I) and what does the new 245(I) really do?

My goal in writing this article is to explain, in as simple terms as possible, the most misunderstood provision of the LIFE Act: 245(I). This article attempts to explain in general the immigration law before 245(I) was ever enacted, the context in which section 245(I) was enacted and what one must do to take advantage of the new 245(I).

General Background
Most people get their permanent residency (green card) status in the United States through two processes: either going to an American consulate abroad where “immigrant visa” is issued to them or through an “adjustment of status” process in the United States. For several years, there have been restrictions on who could qualify for adjustment of status in the United States. People who snuck through the border, entered the United States without being inspected by an immigration Officer, overstayed their visas or otherwise violated their status, were barred from adjusting. There are some exceptions, e.g., immediate relatives of a United States Citizen. Other than this, most people are required to go back to their country to apply for immigrant visas. And for good reasons, a lot of people were afraid of going back to their countries to apply for visa. What if they left and are not given the visa to come back, they ask? Such people, therefore, often opt to remain in the United States, albeit illegally.

In 1997, Congress added another restriction to the Immigration law. This is generally described as the “unlawful presence” provision. Under this, people who have been unlawfully present in the United States for more than 180 days were barred from coming back for 3 years; and those unlawfully present in the United States for more than a year were banned from returning to the United States for 10 years. This meant that people who were qualified to get immigrant visas if they went back to their home countries have even more reason not to go back. They may be barred from coming back for a long time, thus separating them from their family and loved ones.

Then came 245(I), which first became effective in 1994. It allows a person in the United States who is qualified for a green card to pay a $1000 fine and adjust his status, without having to return to his country in order to get immigrant visa. It did not give every person green card or give everyone a work permit. This first 245(I) ended in January 1998. But people who had petitions filed on their behalf as at the expiration of the first 245(I), were still allowed to adjust their status upon payment of the penalty.

How about the new 245(I) President Clinton signed into law before he left office? Is it different from the old 245(I)?

It is similar to the old 245(I). Again, it is not a general amnesty. What the new law does is to extend the old 245(I) to April 30, 2001, with two more requirements. To benefit from the new law, the law requires an applicant to:

a) Show that he or she was physically present in the United States on the date President Clinton signed the law —December 21, 2000; and

b) The person’s petition must be filed by April 30, 2001.

How does a person file to take advantage of the new 245(I)?

Any person who will need Section 245(I) in order to adjust status must ensure that their qualifying petitions or applications reach the INS or applicable government agency on or before April 30, 2001. This is the magic date.

Two practical examples would help clarify the benefits of the new 245(I).

First: Mr. Abdul snuck through the U.S. border or entered the United States without inspection at the airport (i.e., did not see an INS officer at the airport). Mr. Abdul is now married to a U.S. citizen. Under the previous law, Mr. Abdul will have to go back to his country to get Immigrant visa in order to legally stay and work in the U.S. With the benefit of new 245(I), if his wife or employer files a petition for him by April 30, 2001 and he can show that he was in the country as of December 21, 2001, he will only have to pay the penalty and could adjust to permanent residency.

Second: Ms. Jane came into the United States as a visitor. She over stayed her visa and did not change it. She is now enrolled in a registered nursing program at a local college. She is obviously in illegal status. She will be graduating in 2 years. She has no employer who can file for her before April 30, 2001. But her sister who came to the United States several years ago is a United States citizen. It would take more than 10 years for a visa to be available for her under her sister’s petition. But now she can benefit from the new 245(I). Under normal circumstances, because she will be out of status when she graduates in 2 years, she would be required to go back to her country to get an immigrant visa even if a hospital or nursing home files for her. But if she goes home, she will be subject to the 10 year bar. With the benefit of the new 245(I), since her sister filed a petition for her before April 30, 2001, she will be able to adjust her status when her employer files a petition for her in two years.

This second example illustrates two important factors of the new 245(I). First, you don’t have to adjust your status under the very visa petition that was filed for you by April 30, 2001. You only have to show that an approvable petition was filed for you by April 30, 2001. The second factor is that one can benefit in ways that are not immediately obvious. This is where the help of immigration professional will be very important.

Still Not Sure?
If you are still not sure whether the law applies to you or not, you should consult an immigration lawyer soon. But be careful whom you consult. The recent changes to and shifting deadlines of 245(I) make it confusing in determining if the provision applies in any particular case. If you think you are eligible, consult a knowledgeable immigration attorney. Unfortunately, whenever there is confusion there are unscrupulous people who will take advantage of it to prey on others. What is at stake here is not just the money, but also a person’s eligibility for a green card versus being subject to a 3 or 10 year bar. The best protection against being swindled is to educate oneself.

Nobody is sure what the new Bush administration will do with the immigration laws. So, time is running out! Do not wait till the last minute because that may be too late.