The Problem With 245(i)

Often in immigration law multiple sections of legislation converge to impact one another, requiring lawyers and judges to untangle the statutory provisions, the intent of Congress in passing the bills, and resolve conflicts in a fair and just manner. Section 245(i) of the Immigration and Nationality Act (INA) is an example of what is involved.

What Is 245(i)

Congress twice enacted legislation benefiting those in the U.S. in unlawful status, allowing them to adjust status without leaving the country. The first was in 1994, during President Bill Clinton's term. On January 21, 2000, a 245(i) extension was signed by George W. Bush. The main protected classes of 245(i) include those who (1) entered the U.S. without a visa, (2) entered with a visa but remained beyond its expiration, or (3) engaged in unlawful employment, even while in the U.S. in valid status. Also see,

To qualify for 245(i), the applicant must be the beneficiary of a family-based visa petition (form I-130) filed with the U.S. Citizenship and Immigration Services (USCIS), or of an application for labor certification filed by a U.S. employer with the U.S. Department of Labor (DOL). These initiating steps must have occurred no later than April 30, 2001. After the filing, the long wait began for visa availability under the annual quota system as determined by the Visa Bulletin issued by the U.S. Department of State. . Because of heavy visa demand, certain countries and visa categories are backlogged for years--China, India, Mexico and The Philippines. There are thousands of green card hopefuls who even today have not reached their turn.

When the visa finally becomes available, the 245(i) applicant may file his Application to Adjust Status (form I-485) with the USCIS, accompanied by a $1,000 penalty filing fee for every family member, with a lesser amount for children under 14. The principal applicant must also prove that he was present in the U.S. on December 20, 2000, the day 245(i) was enacted. Other requirements include a criminal background check, clean health certificate, and for the family-based immigrants, an Affidavit Support to assure that they will not become a public charge.

The Importance of 245(i)

Processing the green card abroad is not a mere inconvenience. Section 245(i) serves to avoid penalties of the Illegal Immigration Reform and Immigrant Responsibility Act of 1996 (IIRAIRA) which penalizes unlawful presence in the U.S. beginning with April 1, 1997. The penalty is two fold: First, the violator is prohibited from adjusting status. Second, by departing the U.S. (even if to complete processing the green card), he becomes inadmissible for 3 or 10 yrs.

Legal Obstacles to 245(i)

We know that life is ever changing, and people are impelled to take action by personal circumstances. Indeed since 1997, many variations of 245(i) eligibility have been presented to the courts. The most typical is the person who left the U.S. briefly, often due to a family emergency, and returned without a visa, or left more than once just for a visit. What if a person with a 245(i) benefit was ordered removed, left the country, and re-entered without inspection? Can he still qualify for 245(i)?

In reaching a decision, at issue were competing provisions of law: (1)the benefit of 245(i), (2) section 241(a)(5) of the INA providing that one who is subject to a reinstated removal order (due to unlawful entry after removal) is not eligible for "any relief" from removal, and (3) INA section 212(a)(9)(C)(i) which punishes repeated immigration violators who re-enter or attempt to re-enter without documents after being deported or unlawfully present for more than one year.

Sorting It Out

An analysis of the above scenarios created a ping-pong of decisions between the Board of Immigration Appeals (BIA), the appellate arm of USCIS rulings, and the federal appellate courts that review BIA decisions. The rulings ranged from allowing the 245(i) applicant to file an Application for Waiver of Inadmissibility (form I-601) without departing the U.S, to filing for permission to reapply for admission after deportation or removal (form I-212), or even completely barring an application for relief until 10 years have been spent outside the U.S.

The most recent decision has come from the Ninth Circuit Court of Appeals (9th Cir.) which on April 11, 2011 ruled in Garfias-Rodriguez v. Holder that 245(i) is unavailable to Mr. Garfias because he had twice left the U.S. and each time re-entered without inspection. While this view is contrary to an earlier decision of the 9th Cir in another case, the Court explained that it was not reversing itself, but merely following BIA decisions made subsequent to the Court's prior friendly ruling. The more recent opinion is based on the maxim that deference is given to the BIA in interpreting immigration law which it is charged with administering, as long as its ruling is reasonable.

The tug of war is not over because American Immigration Council (AIC), a non-profit arm of American Immigration Lawyers Association (AILA) has successfully challenged the harsh decision in Garfias. On March 1, 2012, the 9th Cir. granted AIC's petition for rehearing en banc. We now wait to see whether the full panel of all 9th Cir. judges will uphold, modify, or strike down the decision made by the thee judge panel of Garfias.