by Neil Lewis

NOTE: This article is not intended to be legal advice. If you have a question about a specific immigration case, you should contact a licensed immigration attorney who can advise you on your specific case.

Well folks, its that time again. Media outlets are reporting that Congress is considering passage of an extension to Section 245(i) of the Immigration and Nationality Act, and it is generating some misleading rumors throughout the immigrant community. I call these unsubstantiated rumors the "Myth" of Section 245(i). This article will attempt to briefly discuss where that extension stands as of this writing, and what it does and does not mean.

First, let's talk about what 245(i) is not. It is not an amnesty . I know some media are reporting it as an amnesty, but trust me, it is not. It does not allow everyone who entered the country illegally, or who overstayed their visas to get a "green card," no matter how long they have been in the U.S. It is also not a "new" law. Section 245(i) has been in place for over ten years, in one form or another. The deadline for filing under the section originally passed in 1996. Then, on Dec. 21, 2000, President Clinton signed the L.I.F.E. Act which extended that deadline until April 30, 2001. As explained below, as of this writing that deadline still stands.

So what does Section 245(i) do? Its purpose is to allow some aliens who would normally not be eligible to adjust their status to permanent residence to do so by paying a penalty of $1,000.00 and filing another form. The trick is that those aliens must be otherwise eligible to adjust. The law does not create a separate class of aliens who can adjust their status, only helps those who would be able to if they hadn't entered illegally or overstayed their visas. That means that the only people who can utilize 245(i) to adjust their status are the Immediate Relatives of U.S. Citizens, Preference Relatives who have current priority dates, or beneficiaries of an approved Labor Certification. Further, to be eligible for adjustment, the Labor Certification or I-130 Petition for Alien Relative must have been filed before April 30, 2001, and the alien must have been present in the United States on Dec. 21, 2000. It also applies only to people who entered without inspection or who overstayed their visas, not to people who entered fraudulently. (Like someone who used a passport not in his or her name.)

On this date, April 9, 2002, there has not been an extension of section 245(i) benefits. There has been a version of a bill regarding 245(i) passed by both the U.S. Senate and House of Representatives. These bills are currently being reconciled between the two houses of Congress. That is, the two houses have to come up with a single version of the bill to send to the President. Once that is done, President Bush must sign the bill into law. Then, the Immigration and Naturalization Service will have to implement regulations in order to allow people to file under the new extension. Therefore, it is not going to happen in the next half-hour. It may be weeks or months before a person could practically file under section 245(i). (If the person is not already qualified.)