Setting the Record Straight on Section 245(i) of our Immigration Law

A joint release of the American Immigration Lawyers Association and the National Immigration Forum

April 4, 2002
AILA: Amanda Carufel,  202-216-2404

NIF: Douglas Rivlin, 202-544-0004x14 

Setting the Record Straight on Section 245(i) of our Immigration Law

 Washington, DC – On March 12, the House of Representatives passed a modest extension of a provision of immigration law known as Section 245(i).  This little understood and much maligned provision is simply about the location –that is, where – already qualified aliens may apply for their legal permanent residency.  On March 28, the Federation for American Immigration Reform put out a press release claiming that this provision somehow opened a loophole for terrorists to gain legal permanent residency in the U.S.

Contrary to the Federation’s allegations, Section 245(i) does not operate independently of the long-standing provisions of our immigration laws that make known terrorists inadmissible to, and deportable from, our country.  A person seeking Section 245(i) processing must:

  • Prove to the INS that they have the requisite family relationship or job offer;
  • Wait in the same line as everyone else for the visa application to be approved or denied;
  • Prove that they meet all the requirements for permanent residence in the U.S., including passing background and security and "affidavit of support" requirements.

In perhaps the most widely spread series of distortions imaginable, opponents allege that Section 245(i) provides some kind of magical protection from deportation and some kind of magical blanket waiver of all of our immigration laws.  Nothing could be further from the truth.  In fact, Section 245(i) does not provide any authorization to remain in the United States, does not provide employment authorization, and does not provide any protection from deportation, unless and until it is the applicant’s turn, a visa is available, and the person has been approved for lawful permanent resident status, a process that typically takes years.

Contrary to the Federation’s allegations, terrorism-related provisions in the law would deny admission to any alien who: 

  • Has engaged in a terrorist activity, including providing material support to a terrorist organization, being a member in a terrorist organization, using one’s position of prominence to endorse or espouse terrorist activity, or preparing or planning any terrorist activity;
  • The Attorney General has reasonable grounds to believe is engaged in or is likely to engage after entry in any terrorist activity;
  • The Attorney General knows or has reason to believe seeks to enter the United States to engage, even incidentally, in any unlawful activity.

 Furthermore, people seeking to use Section 245(i) are screened in many other areas, all of which can be used to deny an application. These areas include:

  • Health-related grounds, including mental and physical disorders;
  • Criminal convictions
  • Drug trafficking (with or without a criminal conviction)
  • Prostitution and commercialized vice
  • Government officials who have violated religious freedom
  • Smuggling and human trafficking
  • Money laundering
  • Adverse foreign policy consequences
  • Membership in totalitarian parties
  • Perpetrating Nazi persecution or genocide
  • Likely to become a public charge
  • Stowaways
  • Anyone committing document fraud or misrepresentation
  • Practicing polygamists
  • International child abductors
  • Unlawful voters
  • Various other documentation requirements

We list the above grounds to underscore what the Federation is trying to obscure: immigrants who qualify for permanent residence and get to complete their paperwork in the U.S. (under Section 245i) are subject to intense scrutiny.  They face a rigorous screening process that involves a lengthy application, criminal background checks, in-person interviews, and other hurdles.  Applicants must be fingerprinted and the fingerprints are checked against databases maintained by the Federal Bureau of Investigations (FBI).  In addition, certain identifying biographic data about each applicant is transmitted to the Central Intelligence Agency (CIA).  In return, the CIA advises the INS when information in their files appears to relate to an applicant.  In addition, the basis for eligibility (such as a marriage or an offer of employment) is closely examined, and any suspicion of fraud or misrepresentation is carefully investigated.

It is time to stop the fear mongering and false allegations against Section 245(i).  It is time to set the record straight.

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Cite as AILA Doc. No. 02040534.