Adjustment of Status vs. Consular Processing of Immigrant Visa in Home Country: 245(i) UPDATE

Section 245(i) was the provision of the Immigration and Nationality Act that permitted persons who were not in status, entered without inspection or worked without authorization to adjust their status while remaining in the United States. Using Section 245(i), an alien could pay the INS a penalty fee of $1,000.00 for the privilege of adjusting their status while remaining in the U.S. Presently, eligibility for section 245(i) requires that the alien have been the beneficiary of a family-based petition or of a labor certification filed on or before January 14, 1998. No new applicants for adjustment may use 245(i) if they did not previously have a relative petition or a labor certification filed prior to January 14, 1998.

The sunset of section 245(i) has caused many problems for potential immigrants. Some are caught in a “Catch-22” situation. Many of those aliens without a qualifying petition filed before January 14, 1998 can no longer adjust their status in the United States. Without 245(i), the alien must return to his native country to be processed through the U.S. Consulate. Unfortunately, if this alien leaves the United States, he may also trigger a three or ten year bar, possibly preventing his return to the U.S.

The three and ten year bars arise as a result of an alien leaving the United States after accruing over 180 days or over one year of Aunlawful presence in the United States. “Unlawful presence” begins to accrue when an individual stays beyond his or her period of authorized stay in the United States (i.e. overstays past date permitted by the INS on I-94) or works without valid work authorization. If such an alien overstays more than 180 days and then leaves, he or she shall be barred from re-entering the United States for a period of three years. If the same person overstays for one year and then leaves, he or she shall be barred from re-entering for ten years. A waiver of the three or ten year bars is available, but the alien must show that preventing his readmission would cause extreme hardship to his lawful permanent resident or U.S. citizen spouse or parent.

What this means is that, an alien who is ineligible to adjust his status must now return to his home country and be processed through the U.S. Consulate; however, not only will this process require significant time in the native country (probably apart from one’s spouse and family), but the alien is left subject to the often arbitrary decision of a consular officer in regards to his application AND the waiver.

The risks involved in returning to one’s home country for consular processing are significant and substantial. Much less risk is involved in an application for adjustment of status. The alien is permitted to remain and work in the United States, even while awaiting his/her interview. Now, even aliens who marry U.S. citizens or are immediate relatives of U.S. citizens must have proof of legal entry/inspection in order to apply for adjustment. Without 245(i), aliens who entered the United States without inspection may no longer adjust their status no matter the circumstances.

Recognizing all the problems that the eradication of 245(i) caused, both the House of Representatives and the Senate has introduced several bills that would re-implement 245(i) for all aliens. So far, none of these has been signed into law by the President, but I anticipate that soon, both the Congress and the President shall recognize the severity of the present immigration laws and implement 245(i) again. After all, adjustment of status permits families to stay together, lessens the burden on U.S. consular offices abroad, and earns significant income for a federal government that is often looking for ways to generate money. The lawmakers need to set aside the anti-immigrant sentiment and make the only sensible decision, to re-implement INA section 245(i).