What is Section 245(i) of the Immigration and Nationality Act?
Section 245(i) of the Immigration and Nationality Act (INA) allowed certain unauthorized immigrants who are physically present in the United States to apply for lawful permanent resident status (i.e., a “green card”). Under the provision, which remains on the books but is essentially dead-letter due to the passage of a key statutory deadline, qualifying individuals were able to obtain lawful permanent residence regardless of how they initially entered the United States or whether they were out of status.
The process, known as Section 245(i) Adjustment, applied even in many scenarios that would ordinarily bar an individual from green card eligibility. Under Section 245(i), qualified applicants could waive their immigration violation(s) and adjust status upon payment of a $1,000 fee, which essentially served as a fine.
Who could apply for Section 245(i) Adjustment?
Immigrants who had an unlawful immigration status could apply for a green card only if an employment or family-based immigrant petition was filed on their behalf by April 30, 2001. At present, there are vanishingly few individuals in the United States who would be able to satisfy this requirement and have not yet already obtained relief under Section 245(i) or through a different channel.
What are the benefits of Section 245(i) Adjustment?
Section 245(i) would provide many individuals an opportunity for a clean slate, allowing them to adjust status and obtain a green card regardless of how they entered the United States, whether they ever worked without authorization, and whether they failed to maintain lawful status.
For example, many unauthorized immigrants interested in obtaining a green card based on relationships to relatives who are U.S. citizens or lawful permanent residents must apply for their green cards from abroad. But those who have been unlawfully present in the U.S. for extended periods generally face a three-year or ten-year bar on reentering the country. Section 245(i) allowed unauthorized immigrants to waive their periods of unlawful status and adjust to permanent lawful status without leaving the country.
When was Section 245(i) first enacted?
Section 245(i) was first enacted in 1994. Initially, it only allowed unauthorized immigrants to adjust to lawful permanent resident status if they had immigrant petitions that were submitted and approved by October 1, 1997.
Section 245(i) was amended in 2000 by the Legal Immigration Family Equity (LIFE) Act, which extended the filing deadline to April 30, 2001. However, Congress opted not to amend the deadline further, and the 2001 cutoff has remained in effect ever since.
If the filing deadline was more than twenty years ago, why does Section 245(i) matter now?
Congress retains the authority to either extend the filing deadline or eliminate it. If Congress acts on this issue, it is estimated that as many as 2.3 million unauthorized immigrants living in the United States may be able to seek a green card through sponsorship by a spouse, other family member, or employer.
Is Congress considering legislation that would revive Section 245(i)?
On May 13, 2021, Senator Catherine Cortez Masto (D-Nevada) reintroduced the Fairness for Immigrant Families Act (S.1638) that, among other things, would extend the filing deadline for §245(i) from April 30, 2001, to five years following the enactment of the Fairness for Immigrant Families Act.
Why would Congress revive Section 245(i)?
With various efforts at broader immigration reform potentially at an impasse, reviving Section 245(i) by extending the deadline would provide a pathway to citizenship to many immigrants living in the United States. These immigrants currently reside in the U.S. and have worked, paid taxes, and supported their families. Reinstating Section 245(i) would allow them more fully contribute to American communities.
As Senate Democrats consider providing a pathway to citizenship for Dreamers, Temporary Protected Status holders, and other essential workers in a large reconciliation bill, procedural limitations may require alternative options. Some experts have suggested that extending the deadline in Section 245(i) would likely satisfy reconciliation’s procedural requirements while providing a pathway to citizenship for many essential workers and others.
The National Immigration Forum would like to thank Rebekah Rosenberg, policy intern, for her extensive contributions to this fact sheet.