House Passes 245(i) Extension

On Monday, May 21, 2001, the House of Representatives passed H.R. 1885. The bill extends benefits under section 245(i) of the Immigration & Nationality Act. Under this section, aliens who are otherwise eligible to get a green card but who are not eligible to have their final interview in the United States may pay a fine of $1,000 to the INS and have their final interview in this country. The bill was passed by the Senate. President Bush signed it into law.

Aliens must have a familial or employment relationship in order to qualify for 245(i) benefits. In other words, they must have a United States citizen parent, spouse, child over the age of 21, or sibling or a lawful permanent resident parent or spouse who is willing to petition them. Alternatively, they must have an employer who is willing to sponsor them for a labor certification.

Under this law, the familial or employment relationship must have existed on or before April 30, 2001. That requirement has never existed before. The law extends 245(i) for four (4) months beyond the date of enactment of the bill (the date it becomes law).

The extension of 245(i) is very good news to the people who were not able to take advantage of the previous extension. Aliens can usually have their interview in the United States only if they entered the country with a lawful visa, have not violated their status and are currently in status. (If they are the immediate relative of a United States citizen, they need not currently be in status). If they do not qualify, they must have their final interview in the American Embassy of their home country. However, if they have been out of status for six months or more, when they leave the United States, they are unable to come back for a period of three years. If they have been out of status for one year or more, when they leave the United States, they are unable to come back for a period of ten years. Although there is a waiver for people who have United States citizen or lawful permanent resident parents or spouses who would suffer extreme hardship if the alien could not return, the waivers are granted at the discretion of INS officers.

Section 245(i) prevents the alien from having to leave the United States for an interview. As a result, the alien does not leave the United States and is not subject to the three year or ten year bar. Once they have their green card, the three year and ten year bar no longer apply.