Immigration and Nationality Act (INA)

¶ … Immigration and Nationality Act (INA)

Section 245(i) of the Immigration and Nationality Act (INA)

Why did 245(i) expire, why was it not renewed?

In the U.S., the INA or Immigration and Nationality Act allows an alien's immigration status to be changed from a temporary parolee or non-immigrant to the permanent status of immigrant in case the alien was paroled or admitted properly while entering the United States. Section 245(i) of this act was passed by the Congress in 1994. Under this section, those aliens who were not eligible for adjustment to their status were permitted to seek a change in immigration status without having to leave the U.S. And by paying a penalty fee. (U.S. Citizenship and Immigration Services)

This law had actually expired much earlier on 14th January, 1998. However, as part of the LIFE Act (Legal Immigration Family Equity Act), INA Section 245(i) was temporarily reinstated by the Congress on December 21st, 2000 until its expiry four months later on 30th April, 2001. Therefore, as of now, this law stands expired except for the provision that only "grandfathered aliens," those who had filed their petitions immigration visa or labor certification on or before the closing date are permitted to adjust their immigration status under Section 245(i). (Adjustment of Status under the Legal Immigration Family Equity Act ("LIFE Act")); (Ewell, 87)

President Bush had made the revival of this law one of his top priorities when he came into power. However, the incident of 9/11 made the general public extremely skeptical about illegal immigrants and many of them were perceived to be synonymous with terrorists. Most people were against the liberalization of immigration laws and wanted them to be stricter especially when dealing with unlawful entry into the country. The involvement of illegal aliens like Abouhalima and Mohammed Salameh in the 1993 WTC bombings and the fact that most of the hijackers in the 9/11 incident had violated their immigration status exploiting loopholes in the legal system had successfully scuttled any plans to revive Section 245(i). (Federation for American Immigration Reform); (Farnam, 14)

Moreover, nationwide polls conducted in the aftermath of the 9/11 incident reflected a deep-seated opposition to any kind of laxity in dealing with illegal immigrants and the view that the government was not acting in a responsible manner in screening aliens and securing the borders. Thus when Senator Richard Gephardt, the house minority leader, introduced a bill for the re-extension of Section 245(i) in October 2002 before the 107th Congress, there was a major brouhaha over the issue and 245(i) was not allowed to be reauthorized. (Federation for American Immigration Reform); (Farnam, 14); (Jakubowski, U.S. Policy on Mexican Immigration: The challenges of Legalization)

Q2. What are the pros to 245(i)? How would this help the immigration backlogs and families reunite?

First of all, a fact one must recognize is that America will continue to attract migrants -- both legal as well as illegal despite all security measures because of the employment opportunities and income disparity between the U.S. And various nations. It is also a fact that the U.S. needs unskilled, skilled and diverse workforce. Migrants from the Mexico, in particular, are of special concern as a large proportion of them enter illegally through the borders, many of them risking their lives in the process. Such immigrants are often duped. There have been many cases of death and forced prostitution as well. Thus, Section 245(i) of INA serves a number of purposes. Firstly, it would serve the purpose of targeted legalization where immigrants who entered the U.S. legally but violated their legal status and stayed on even after the expiry of their visa are granted the status of permanent immigrants. Secondly, it would also benefit those who entered the country illegally but are eligible to stay on. (Jakubowski, U.S. Policy on Mexican Immigration: The challenges of Legalization)

Section 245(i) would also be a boon for those eligible and legal immigrants on the verge of becoming permanent citizens to apply for green cards from within the U.S. instead of having to return to their own countries before applying. Thirdly, it would help to legalize thousands of unauthorized workers who are given extremely low wages in the U.S. simply on account of their legal status. In terms of governance, it would help clear the backlog of immigration applicants and help in better surveillance as well since more people would be on documentation. Simply putting forward the argument that illegal immigrants are potential terrorists is naive since even naturalized U.S. citizens like Terry Nichols and Timothy McVeigh were terrorists and violent crimes have been committed by American criminals as well. Section 245(i) is pro-business and fiscally prudent as businesses get to retain indispensable employees who contribute towards the welfare of the country. (Farnam, 17); (Jakubowski, U.S. Policy on Mexican Immigration: The challenges of Legalization); (Section 245(i): A Matter of Family Unity and Common Sense)

It is pro-family as well since many such immigrants whose close family members are already permanent U.S. residents can get to stay with their families while applying for a status change. Last but not the least, the penalty fee charged from applicants applying for immigrant status provide revenue in terms of millions to the INS and do not burden the taxpayer as well. In fact, the INS has been suffering from a serious lack of funding for processing visa and naturalization applications since the expiry of Section 245(i) resulting in a huge backlog. Thus, section 245(i) seems to be a matter of common sense above all since it would benefit the U.S. from a number of perspectives. (Farnam, 17); (Jakubowski, U.S. Policy on Mexican Immigration: The challenges of Legalization); (Section 245(i): A Matter of Family Unity and Common Sense)

Q3. Why and who are against 245(i)?

A number of citizens groups and a section of senators do not want that Section 245(i) should be made permanent or even given an extension. Such citizens groups include FAIR (Federation for American Immigration Reform) and NumbersUSA. These non-profit organizations believe that liberal immigration policy decisions including granting an extension to Section 245(i) and enacting several other similar policies which make the status of illegal immigrants legal and make them eligible for various state benefits is detrimental to the life and security of the American people. (Federation for American Immigration Reform) According to NumbersUSA, such decisions would only force "a more and more congested and regimented future" for their coming generations and for the nation as a whole. (What Section 245(i) actually does?)

Among the opposing senators, the West Virginia Democrat, Senator Robert C. Byrd's dissenting voice is the loudest. In his floor statement on March 18, 2002, he described the move to extend 245(i) as "sheer lunacy" and "nonsense." (U.S. Senate Republican Policy Committee); (Dinan, A4) Even when the Republicans were in power, the anti-immigration wing of their own party succeeded in mobilizing enough Republicans and blocked the extension of Section 245(i). This movement was spearheaded by Reps. Dana Rohrabacher (California), Brian Bilbray (California), and Lamar Smith (Texas). However, it was due to the pro-immigration advocates belonging to both the parties in the Congress like Richard Gephardt, David Obey and Howard Berman (all Democrats), and Republican leader Lincoln Diaz-Balart that 245(i) was temporarily reinstated. (Butterfield, AILA on 245(i) Provisions)

Q4. Compare and contrast 245(i) with the Reuniting Families Act- what is better for immigrants and reuniting families? What will put an end to the backlog?

The Reuniting Families Act (H.R. 2709) was presented before the 111th Congress by Rep. Michael Honda, Chairman of the Asian Pacific American Caucus, in the month of June, 2009. This piece of legislation has some parts which are similar to Section 245(i). However, it is basically different on two accounts. Firstly, it primarily places emphasis on "legal family-based immigration" and is meant for reuniting the families of legal immigrants. On the other hand, 245(i) places more emphasis on legalizing illegal immigrants many of whom entered the country through illegal means. Secondly, the Reuniting Families Act takes into account unclaimed/unused work and family visas delayed by bureaucratic problems and also honor the World War II Filipino war veterans by exempting their children from numerical caps. For Reuniting Families Act, completing the families of legal immigrants is the main objective whereas for 245(i) reuniting families is simply one of the "by-products." (Shank, Michael Honda to Announce Key Component of Comprehensive Immigration Reform: Reuniting Families); (Reuniting Families Act-2009); (Honda, The Reuniting Families Act (H.R. 2709))

The main emphasis in Section 245(i) is to bring more and more undocumented, unauthorized and illegal aliens into the mainstream irrespective of whether they have family members with an LPR status or not. Section 245(i) also attempts to clear the massive backlogs of immigration and visa petitions. On the other hand, the Reuniting Families Act will clear the backlogs only for families attempting to reunite with their near and dear ones by categorizing the spouses and children of LPRs -- Lawful Permanent Residents as "immediate relatives" and sparing them from having to pay the family immigration numerical cap. The 'Reuniting Families Act' would also try to increase the current per country limit of 7% to 10% for the issuing of green cards. This bill, if passed, would also permit widows, widowers and children of those persons who die before the completion of the immigration process to get LPR status. (Shank, Michael Honda to Announce Key Component of Comprehensive Immigration Reform: Reuniting Families); (Reuniting Families Act-2009); (Honda, The Reuniting Families Act (H.R. 2709))

Reuniting Families Act also attempts to stop discriminatory clauses in other immigration rules which prevent permanent same-sex partners to reunite with their families. From the perspective of illegal immigrants, section 245(i) would be more suitable as they will not have to return to their home country before filing a petition for a change of status because if they do return, they might face a possible ban ranging from 3 to 10 years barring them from entering the country. Again, Section 245(i) would clear a larger section of the immigration backlog than the Reuniting Families Act. However, if we consider from the perspective of legal immigrants who have not flouted any rules and have a family waiting to join them, the Reuniting Families Act seems to be a better proposition. (Shank, Michael Honda to Announce Key Component of Comprehensive Immigration Reform: Reuniting Families); (Reuniting Families Act-2009); (Honda, The Reuniting Families Act (H.R. 2709))

Q5. Who supports the Reuniting Families Act and why?

A number of organizations and Congressional leaders support the Reuniting Families Act. Some of these organizations include Human Rights Campaign, Council for Global Equality, Gay, Lesbian and Straight Education Network, New York Legal Assistance Group, American Immigration Lawyers Association -- AILA, Episcopal Church, American Jewish Committee and various labor organizations. Among the Congressional supporters, Michael Honda is supported by Gary Ackerman, Neil Abercrombie, Barbara Lee, Jesse Jackson Jr., Chaka Fattah, and many more. These organizations and people believe that a just and efficient means to achieve a lawful family-based immigration is essential to keep the nation strong. They believe that strengthening family units makes good business sense as strong family units pool in their resources to launch businesses which facilitate creation of more jobs in the U.S. These families buy homes, send their children to colleges and add to the pool of talented and skilled human resource and in the process strengthen American industry and economy.

Proponents of this bill believe that breadwinners can effectively contribute to U.S. economy if they get the support of the family in looking after the elderly, young children and the sick especially in light other unaffordable alternatives. In addition, in light of the fact that America's social security system is in a jeopardized state, families provide the much-needed security for a workforce that is aging. The support for this bill also comes from the hundreds of immigrants who have entered the U.S. legally and have abided by all the necessary rules but are now separated from their immediate family on account of the present status of the immigration system. This bill would prevent many frustrated family members of LPRs from availing illegal means to enter the country and stay with their families. (Stannard; Hendricks, 6); (Section 245(i): A Matter of Family Unity and Common Sense)