IMMIGRATION UPDATE

August 14, 2001

Section 245(i)
New Restrictions Punish Employers Who Have Abided by the Law and Unnecessarily Punish Innocent Families

The House-passed limited extension of Section 245(i) (H.R. 1885) and the version that passed the Senate Judiciary Committee (S. 778) both include a new provision that would require beneficiaries to demonstrate that the required "familial or employment relationship" existed on or before April 30, 2001 (in the House bill) or date of enactment (in the Senate bill). Importantly, this new requirement is retroactive to January 14, 1998. This statement lays out AILA's opposition to the new requirement. 

Background: Section 245(i) would allow eligible people to adjust their status in the U.S. when their immigrant visas become available. Immigrants who adjust their status under this provision pay a steep fine for having been in the U.S. illegally, and in return are not forced to endure a separation from their family or employer for a three- or ten-year period. Both H.R. 1885 and S. 778 would extend the period of time within which eligible people can file their petitions and applications with the Immigration and Naturalization Service (INS) and the Department of Labor (DOL). 

Section 245(i) was temporarily reinstated into immigration law, after having expired in January 1998, by the Legal Immigrant Family Equity Act (LIFE Act) enacted in 2000. The LIFE Act provided a window of just four months during which time persons wanting to petition for a family member or employee had to file with the INS or DOL. By the deadline, April 30, 2001, many were unable to file a petition for a variety of reasons.

What is the New Requirement in H.R. 1885 and S. 778 and Why Should it be Deleted: Both H.R. 1885 and S. 778 extend Section 245(i). (H.R. 1885 for a mere four months, and S. 778 until April 30, 2002.) While AILA supports at least a one-year extension to allow sufficient time for people to file their applications and adjustments, the new requirement in both bills poses significant problems. On the family-based side, this requirement will preclude eligible, innocent families from using Section 245(i) simply because many still will not know they need to file and what they will need to file before a certain date, and others, while in bona fide relationships, have yet to get married. There is no need to set an artificial deadline to establish bona fide family relationships. Existing immigration laws already require applicants for immigrant visas to document their "marriage" in good faith with proof that they did not marry solely to obtain an immigration benefit. Furthermore, the law already limits eligibility for Section 245(i) to those people who had resided in the U.S. prior to December 21, 2000, thus avoiding any possibility that people will enter the US in order to take advantage of the new extension. 

On the employer side, the new provision would require employers to violate existing law: In order to obtain the benefits of Section 245(i), employers would have to unlawfully employ a foreign worker in violation of immigration law. The new requirement mandates that the relationship (that is the basis for the application) existed between the employer and the worker prior to either April 30, 2001 (in the House bill) or the date of enactment (in the Senate bill). Importantly, this new requirement is written so that it would apply retroactively to any application submitted after January 14, 1998. Yet it is illegal for an employer to establish this relationship by hiring an undocumented worker. 

Under existing law, Section 245(i) requires that the employer simply make an offer to employ a worker at the time the worker adjusts status to legal permanent resident, and does not require that an employment relationship be established because to do so would violate the law. Because of the new requirement, Section 245(i) would be available only to employers who violated the law and established an illegal relationship with an employee prior to April 30 or the date of enactment. This requirement would penalize employers who followed current law and only made an offer of employment, and did not actually hire the worker illegally. 

Even worse, because of the retroactive language, the new restrictions would invalidate the applications of thousands of employers who followed the law and properly submitted an application after January 14, 1998 but on or before April 30 on behalf of workers they had not yet hired. The new requirement changes the rules in the middle of the game by mandating an existing employment relationship that, by law, cannot legally exist and did not exist. Those employers who prior to this new requirement followed the law in submitting their applications would be out of luck if the new retroactive requirement becomes law. Although they already have submitted their applications, they will now be unable to meet the new requirement's standard. These employers will be denied the benefit of Section 245(i) because they cannot prove that they violated the law by hiring an undocumented worker. 

Furthermore, allowing the retroactive language to apply to prior fillings and thereby substantially altering the eligibility for thousands of applications and petitions already filed with and processed by the Immigration and Naturalization Service (INS) and the Department of Labor, would have other negative consequences. It would result in an enormous waste of resources and time by government employees who would have to process these filed petitions based on the new requirement's mandate. It also would result in administrative, accounting and funding nightmares for the INS. If the retroactive language is applied to applications that were properly filed at the time the fee was paid, the INS probably will be required to refund the filing fees of these applications because they do not meet the new requirement. In addition, the retroactive application will no doubt result in litigation against the INS' implementation of the statute, thereby resulting in an enormous waste of government resources. 

AILA's Position: AILA supports the extension of Section 245(i). Under current law, Section 245(i) is pro-business and pro-family. However, the new requirement in the extension bills passed by House and Senate Judiciary Committee requiring a pre-existing family and employment relationship is both bad law and bad policy. Making the new requirement retroactive is even worse. AILA will oppose any extension of Section 245(i) that includes a provision that requires employers to violate the law in order to use Section 245(i) and implements this requirement retroactively.