Recently the handling of civil immigration detainers by local law departments has been heavily scrutinized.
AILA Doc No. 01070658 | Dated July 6, 2001
SECTION 245(i) EXTENSION
H.R. 1885 Is Seriously Flawed
Senate Bill, S. 778, Is Pro-Family and Pro-Business
Issue: The House on May 21 passed a limited extension of Section 245(i). H.R. 1885 would extend the Section 245(i) deadline for only four months, while also requiring beneficiaries to demonstrate that the required "familial or employment relationship" existed on or before April 30, 2001.Both the short four-month extension and the new requirement create problems for both families and businesses. In contrast, S. 778, introduced by Senator Chuck Hagel (R-NE) and Edward Kennedy (D-MA), would extend the Section 245(i) deadline for one year, giving people a more realistic period of time to file.
Please contact your Senators and urge support for S. 778. Along with Senators Hagel and Kennedy, other supporters are: Senators Jeff Bingaman (D-NM), Barbara Boxer (D-CA), Lincoln Chafee (R-RI), Hillary Rodham
Clinton (D-NY), Jon Corzine (D-NJ), Tom Daschle (D-SD), Christopher Dodd (D-CT), Pete Domenici (R-NM), Richard Durbin (D-IL), John Ensign (R-NV), Diane Feinstein (D-CA), Peter Fitzgerald (R-IL), Bob Graham (D-FL), Charles Grassley (R-IA), Jesse Helms (R-NC), John Kerry (D-MA), Mary Landrieu (D-LA), Joseph Lieberman (D-CT), Richard Lugar (R-IN), Barbara Mikulski (D-MD), Benjamin Nelson (D-NE), Jack Reed (D-RI), Harry Reid (D-NV), Charles Schumer (D-NY), and Paul Wellstone (D-MN). Please contact your Representative and urge their support for a measure that would include a longer period for filing petitions and no new restrictions on who might apply. Please also contact the White House and urge the Administration to support S. 778. You can reach your Senators and Representatives through the Congressional Switchboard, 202-224-3121. You can reach the White House by calling 202-456-1111.
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. The extension measures Congress currently is reviewing 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 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. H.R. 1885 does not provide enough time to file petitions and applications and is unnecessarily restrictive.
· H.R. 1885 is out of step with the President and with previously introduced bipartisan legislation in the House and Senate. President Bush already has announced his support for an extension of Section 245(i) of six months to one year. In the Senate, Senators Hagel (R-NE) and Kennedy's (D-MA) bipartisan bill, S. 778, would provide for a one-year extension. In the House, bills had been introduced by Republicans and Democrats to extend the deadline for periods of six months and one year.
· H.R. 1885 does not offer a sufficient period of time, and will lead to many of the same problems that arose during the brief period of time the LIFE Act gave applicants. The House bill also contains new restrictions on who might apply, and new legal definitions that will have to be interpreted and clarified by new regulations. The Immigration Service already has dozens of regulations in the works to interpret other recently passed laws. A new regulation to interpret this new law would likely not be published until shortly before the new deadline-leaving potential applicants again with just days to file their petitions with the INS.
· The House bill's short application window (made shorter by the need to first issue regulations) will increase the likelihood of widespread confusion in immigrant communities. Whenever a new law provides a new benefit to immigrants, there is a period of time before the law is understood, depending on the availability of lawyers, the INS' ability to cope with a high volume of inquiries, and community resources that immigrants can turn to for answers. Confusion is compounded when unscrupulous practitioners seek to make money by convincing unqualified individuals they should apply. When there is a very brief window to obtain a benefit the law provides (as with the House bill) resources available to explain the law are insufficient to cope with the confusion and desperation of some to find answers. Without access to legitimate and professional assistance, many will be forced to attempt to figure out this law themselves. The process often is very difficult, and many eligible applicants will lose their right to apply simply because they made an innocent mistake.
· H.R. 1885 will lead to problems at INS and other government agencies: This short four-month window will dramatically increase the burden on government agencies. Citizenship applications and other INS petitions and applications will suffer while INS diverts resources to deal with the long lines of people outside their offices. Other government offices nationwide that provide the documents necessary for Section 245(i) filings will have to shift resources to meet demand. A one-year extension, as provided for in the Senate bill, would spread this work out across a longer time period, allowing people to turn to non-governmental agencies for help and take advantage of other methods of assistance, like services by mail.
· The House bill's new restriction on who might apply unnecessarily punishes innocent families. H.R. 1885 specifies that the "family relationship" (however that is defined) that is the basis for the Section 245(i) petition must exist on or before April 30, 2001. This restriction is excessive. The INS already has strict procedures to determine whether a marriage is fraudulent or not, and any marriage that is less than two years old is subject to heightened scrutiny. In fact, our immigration laws mandate that these marriages result in only "conditional residency." After their second anniversary, applicants must re-apply for permanent residency and prove that the marriage is not fraudulent. Such a process, rather than the arbitrary date of April 30, 2001, should determine whether a marriage is fraudulent or not.
Many would-be families were unable to meet the original deadline for a variety of reasons. For some couples, following the traditions of their religion caused them to miss the deadline. For example, some religions require couples to be engaged for a certain period of time or to complete a course of religious counseling before they are married. Some couples with wedding plans later in the year were forced by the congressionally set deadline in the LIFE Act to move up their wedding plans, and many were simply unable to get married before the deadline. For example, some state government offices have been requiring Social Security numbers or imposing other restrictions that prevented legitimate marriages from taking place before the deadline. Finally, some couples were reluctant to change elaborate wedding plans and inconvenience all involved. The restriction in HR 1885 that the "family relationship existed on or before April 30, 2001 would punish all of these families.
· The House bill will hurt U.S. businesses by punishing employers who have abided by the law, and will have a chilling effect on employees seeking legal status. Under our immigration laws, an employment-based application for permanent residency requires an offer of employment from a U.S. company that can prove there are no available U.S. workers. There is no requirement that the employer hire the applicant before it is approved, and in many cases this would be illegal. H.R. 1885 requires applicants for Section 245(i) to prove that the employment relationship that is the basis for the application existed before April 30, 2001. This provision would require employers to demonstrate that they employed someone that they had no right to legally employ, and punishes those employers who now seek to submit an application for future employment. Furthermore, in order to follow the law, many employers dismissed or refused to hire the workers they would have applied for because they did not have permission to work in the United States. Once the application is approved, the employee will be able to accept the job offer and begin working for the employer. H.R. 1885's requirement that the employer hire the applicant before the application simply does not make sense.
· Safeguards already are in place that discourage illegal immigration. Under the LIFE Act, only people who were in the United States on December 21, 2000 will be able to adjust their status under Section 245(i). This limitation addresses the concern that an extension will encourage people to enter the U.S. to take advantage of Section 245(i). In addition, current immigration law has stringent proof requirements that marriages are valid (see above). Additional restrictions on who may apply serve no purpose, and create the risk that eligible people will miss the deadline because of confusion, mistakes, technicalities, or the inability to get help.
To avoid repeating the same mistakes, HR 1885 should be amended to provide a longer period for filing petitions, and to remove unnecessary new restrictions on who might apply. The Senate should quickly pass S. 778.
Produced by the American Immigration Lawyers Association and the National Immigration Forum
Cite as AILA Doc. No. 01070658.