97-946 A
Updated February 4, 1998
CRS Report for Congress
Received through the CRS Web
Immigration: Adjustment to Permanent Residence
Status under Section 245(i)
Larry M. Eig
Legislative Attorney
American Law Division
William J. Krouse
Analyst in Social Legislation
Education and Public Welfare Division
Summary
Under § 245 of the Immigration and Nationality Act, an alien in the U.S. who, on
the basis of family relationship or job skills, becomes eligible for permanent resident
status may adjust to that status in the United States without having to go abroad to
obtain an immigrant visa. Historically, only those aliens who were here legally (
e.g., as
a student or a temporary skilled worker) could adjust status under § 245. In 1994,
however, Congress enacted § 245(i). That provision, which was set to expire on
September 30, 1997, allowed illegal aliens in the U.S. to adjust status under § 245 once
they, because of family relationships or job skills, became eligible for permanent
residency, provided they paid a surcharge fee.
During debate on extending § 245(i), some viewed extension as an incentive to
maintain illegal residency and as a “loophole” to 1996 immigration reforms. Proponents
of extension cited the money made available for immigration enforcement by the
surcharge fee, and the utility of § 245(i) for allowing families that include an illegal
alien member to remain intact.
The question of extending § 245(i) was resolved in the Commerce, Justice, State,
and the Judiciary (CJS) Appropriations Act, FY1998 (P.L. 105-119). That Act
terminated § 245(i), but did so with a generous “grandfather” provision. Now only a
beneficiary of an immigration preference petition or a labor certification application that
was filed on or before January 14, 1998, is eligible for adjustment under § 245(i) (along
with his or her spouse and minor children). At the same time, a new subsection (k) has
been added to § 245 to allow an alien without legal status to adjust to permanent
residency under employment-based categories (without paying a surcharge) in certain
conditions. Adjustment under this provision is limited to aliens who (1) are here under
a lawful admission when they file for adjustment and (2) have been out of status or
working without authorization for fewer than 180 days.
Congressional Research Service ˜
The Library of Congress
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Background on § 245 of the INA
The Immigration and Nationality Act (INA) sets preferences for granting legal
permanent resident status (
also called immigrant status) on the basis of family
relationship or job skills. Examples of family preference categories include adult children
of U.S. citizens, spouses and children of legal permanent residents, and siblings of adult
U.S. citizens — the minor children, spouses, and parents of U.S. citizens are given highest
family migration priority as “immediate relatives.” Examples of employment preference
categories include aliens of extraordinary or exceptional ability, certain professionals, and
skilled workers. Except for the highest priority of employment-based aliens — aliens of
extraordinary ability, outstanding professors and researchers, and certain executives and
managers of multinational entities — most aliens seeking immigration preference on the
basis of their job skills must obtain a certification from the Secretary of Labor. Labor
certification is premised on a finding that there is a shortage of workers and that
employing the alien will not adversely affect wages and working conditions.
Qualifying for immigration preference is generally initiated by the appropriate
relative or employer (and not by the alien seeking permanent residency). However,
obtaining immigration preference is just part of the process of becoming an legal
permanent resident, and qualifying for a particular immigration preference does not result
in being immediately eligible for permanent residency. Rather, because of numerical
limits on granting legal permanent resident status and allocations of those numbers among
preference categories and nationalities, there are waiting periods, some of many years, in
most preference categories between the time preference is granted and legal permanent
resident status becomes available.
Aliens with immigration preference may either be abroad or in the U.S. when
permanent resident status becomes immediately available to them. Section 245 of the
INA allows those aliens who have been admitted (as nonimmigrant, or temporary,
workers or students, for example) or paroled into the U.S. to adjust to legal permanent
resident status here with the Immigration and Naturalization Service (INS) once
permanent resident status becomes immediately available to them (and assuming that
they are not otherwise disqualified,
e.g., due to past criminal conduct or as a prospective
public charge). Allowing aliens to adjust here has not been meant to bypass any
substantive requirement for legal permanent resident status. Instead, domestic adjustment
was only meant to bypass the procedural requirement of having to obtain an immigrant
visa abroad from a consular officer of the State Department. Obtaining an immigrant visa
after screening by a consular officer is the primary process under which an alien who is
abroad is allowed to enter for legal permanent residence.
In the past, not all aliens whose immigration preference made them immediately
eligible for permanent residence were permitted to adjust under § 245 without leaving the
U.S. Until 1994, adjustment under § 245 was available only to those aliens who were
maintaining a legal nonimmigrant status — as a temporary skilled worker or as a graduate
student, for example — or who still were on parole status under the Attorney General’s
parole authority. Illegal aliens — those who had entered without formal inspection and
admission or who had overstayed the terms of their legal temporary admission — were
barred from adjusting status under § 245 when their immigration preference eventually
made them eligible for legal permanent residency.
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However, in the CJS Appropriations Act for FY1995 (P.L. 103-317), Congress
added a subsection (i) to § 245 that permitted otherwise eligible illegal aliens to adjust
status during a 3-year period, provided they paid an additional fee equal to five times the
1
basic adjustment fee (5 x $130 = $650). The Senate Appropriations Committee (S.Rept.
103-309, p. 134) explained the change in part as follows:
[A]bout 30 percent of persons who receive immigrant visas at consular posts
overseas have been living in the United States prior to being issued an
immigrant visa. . . . Although the current process was originally designed to
dissuade aliens from circumventing normal visa requirements, it has not
provided the intended deterrent effect and merely creates consular workload
overseas.
In other words, barring adjustment by illegal aliens was considered inadequate to
persuade aliens with approved preference petitions to await their turns outside the U.S.
Instead, a significant number maintained illegal residency here, and forcing them to go
abroad to pick up visas
resulted only in burdening
Section 245(i) Immigrants
consular staff. Worldwide,
Admitted in FY1996
over 3 million aliens in
Non-245(i) Adjustments of Status
various preference categories
264,560 29%
are on waiting lists for legal
permanent resident status.
Approximately 345,000
applied for adjustment under
§ 245(i) during its first 2
years (FY1995 and FY1996).
229,935 25%
More than 200,000
245(i) Adjustments of Status
reportedly applied under §
New arrivals
(Estimated)
421,495 46%
245(i) during FY1997.
According to the U.S.
CRS presentation of Immigration and Naturalization Service estimates.
Department of State (DOS),
from December 1994 through November 1996, implementation of §245(i) reduced the
number of petitions processed overseas by 25%, resulting in a savings of nearly $5 million
for that agency. The DOS further estimates that it would cost over $14 million to resume
processing these petitions abroad. Correspondingly, § 245(i) has shifted workload from
DOS to INS and has most certainly contributed to the backlog of applications for
adjustment (I-485s) pending with INS. As of the end of August 1997, there were over
640 thousand I-485s pending with INS. According to INS, it cannot be determined how
much this backlog can be attributed to § 245(i). However, it is estimated that nearly 230
thousands immigrants adjusted status under § 245(i) in FY1996. (See page 4, for a table
providing estimate by visa category.)
1 The § 245(i) adjustment of status provision originated as part of the Senate-reported CJS
appropriations act, FY1995 (H.R. 4603). The House-passed version did not include a similar
provision. The conference report included the provision, but with a sunset date of September 30,
1997 (H.Rept. 103-708; p. 84).
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1996 Amendments to Immigration Law
In 1996, Congress enacted the Illegal Immigration Reform and Immigrant
Responsibility Act (IIRIRA) as Division C of the Omnibus Appropriations Act for
FY1997 (P.L. 104-208). A major focus of this legislation is to reduce incentives for
illegal entry and stay. To this end, IIRIRA attached new consequences to illegal presence
and did so in a way that makes § 245(i) much more of a substantive benefit than the
procedural convenience it previously had been.
More particularly, IIRIRA makes an alien who is unlawfully present in the U.S. for
longer than 180 days but less than a year (beginning after 4/1/97) inadmissible for 3 years
after the alien's departure. An alien who is unlawfully present for at least a year
(beginning after 4/1/97) is inadmissible for 10 years after the alien's departure. These bars
are subject to limited exceptions and to discretionary waivers for close relatives of
citizens and legal permanent residents. However, § 245(i) allows illegal aliens with
immigration preference to bypass these restrictions altogether. If it were not for § 245(i),
these aliens would have to leave the U.S. to obtain immigration visas in order to become
permanent residents, at which point the reentry restrictions would apply.
Estimated Aliens Adjusting to Immigrant Status
Under Section 245(i): Fiscal Year 1996
Category1
Number
Percent
Spouses of U.S. Citizens
80,972
35.2
Family 2nd Preference (spouses and children of LPRs)
75,583
32.9
Employment 3rd Preference (skilled workers and professionals)
24,190
10.5
Children of U.S. Citizens
15,523
6.8
Parents of U.S. Citizens
11,620
5.1
Diversity
6,873
3.0
Family 1st Preference (unmarried adult children of citizens)
4,528
2.0
Employment 4th Preference (certain “special immigrants”)
2,654
1.2
Family 4th Preference (siblings of citizens)
2,546
1.1
Employment 1st Preference (executives and renown aliens)
2,030
0.9
Family 3rd Preference (married children of citizens)
1,677
0.7
Employment 2nd Preference (exceptional aliens, professionals)
1,428
0.6
Legalization Dependents
172
0.1
Employment 5th Preference (employment creation)
98
0.0
Other
41
0.0
Total
229,935
100.0
Source: Immigration and Naturalization Service Statistics Branch.
For further information on immigrant visa categories, see CRS Report 94-146 EPW, Immigration: Numerical
1
Limits on Permanent Admissions.
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Section 245(i) Application Fees
Despite its disincentives for illegal residency, IIRIRA did not repeal § 245(i).
Instead, IIRIRA increased fees under § 245(i) without extending its duration. In addition
to the basic adjustment fee under § 245, IIRIRA now requires an additional fee of $1,000.
Of this sum, an amount (not to exceed $200) is to be deposited into the Examinations Fee
Account to cover administrative costs. The remaining amount (of at least $800) is to be
deposited into a new Immigration Detention Account. In FY1997, INS collected $121
million in 245(i) penalty fees.
2
IIRIRA’s fee provision was a compromise between versions added to House and
Senate-passed immigration bills (H.R. 2202 and S. 1664) by floor amendments.
Significantly, the House passed an amendment by voice vote that would have eliminated
section 245(i) entirely.
§ 245(i) Revised: The FY1998 CJS Appropriations
Section 245(i) was enacted in the Commerce, Justice, State, and the Judiciary (CJS)
appropriations Act for FY 1995 (P.L. 103-317), and as the September 30, 1997, sunset
date that was included in that law drew closer, the question of whether to extend § 245(i)
was debated in the context of the CJS appropriations bill for FY1998 (H.R. 2267). The
Senate-passed CJS appropriations bill for FY1998 included a provision that would have
repealed the sunset date and made § 245(i) permanent. The House-passed CJS
appropriations bill did not include a similar repeal. In the House opposition to § 245(i)
remained strong among some Members, and opponents called for a floor vote on the
issue. Meanwhile, short-term continuing appropriations Acts twice extended § 245(i)
temporarily.
The breadth of House opposition to extension was finally tested in an October 29,
1997, floor vote. At that time, the House considered a motion introduced by
Representative Dana Rohrabacher to instruct the House conferees on the CJS
appropriations bill (H.R. 2267) to oppose the Senate’s proposed extension of § 245(i).
In debate on the motion, opponents stated that almost two-thirds of the aliens who
adjusted under § 245(i) had come here illegally and were not visa overstayers. They
further claimed that § 245(i) allowed illegal aliens to bypass sanctions on illegal presence
enacted in 1996, to “jump” waiting lines, and to avoid the allegedly more thorough
background screening conducted by DOS consular officers. In brief, the proponents of
the motion claimed that § 245(i) created incentives to break the law and undermined
important congressional immigration policies.
Opponents of the motion to instruct conferees emphasized that § 245(i) only
benefitted those who otherwise were eligible for permanent residency, that it aided high
tech industries in retaining valuable employees, that it kept families together, and that it
generated significant sums for immigration enforcement. In brief, opponents emphasized
2 These fee receipts were not expended in FY1997 and, therefore, have been included in the
agency’s FY1998 funding as obligational budget authority. Furthermore, § 110 of the FY1998
CJS appropriations act eliminates the Immigration Detention Account established under IIRIRA
and requires these receipts be deposited in the Breached Bond/Detention Fund.
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that § 245(i) benefitted the economy and facilitated enforcement programs, while
claiming that its repeal would cause many families hardship. Other opponents of the
motion cited its language, asserting that it precluded the possibility of a compromise. In
the end, the opponents prevailed by a vote of 153-268.
The House floor vote notwithstanding, the CJS bill did not come out of conference
with a repeal of the § 245(i) sunset. Instead, the conference version limited § 245(i) to
those aliens who are beneficiaries of (1) a petition for family-based or employment-based
immigration preference filed on or before January 14, 1998 or (2) an application for labor
certification filed on or before January 14, 1998.
Beneficiaries includes not only those
aliens who, because of their family relationships or job skills, are the direct object of a
petition or application, but also includes the alien spouses and children of these principal
beneficiaries. Additionally, there does not appear to be a requirement that an alien
actually be in the U.S. as of January 14, 1998, in order to be able to adjust under § 245(i)
once permanent resident status becomes available to them.
Though the conference CJS bill made § 245(i) available only to those aliens with
preference petitions or labor certification applications pending as of January 14, 1998,
adjustment of status was not completely foreclosed to all out-of-status aliens in the future.
Apart from modifying § 245(i), the bill also added a new subsection (k) to § 245. Under
this provision, aliens seeking permanent residency on the basis of employment skills may
adjust status here under certain circumstances even though they are not be in legal status
at time of adjustment. More specifically, the new § 245(k) allows these aliens to adjust
if (1) they were in the U.S. pursuant to a lawful admission when they applied for
adjustment, (2) subsequent to lawful admission, they did not work illegally or fail to
maintain lawful status for an aggregate period exceeding 180 days, and (3) they did not
otherwise violate the terms and conditions of their admission. It is unclear whether §
245(k) would benefit the spouse and children of aliens who qualify under it.
The conference report on the CJS appropriations bill (H.Rept. 105-405) was filed in
the House on November 13, 1997, where it was passed the same day by a vote of 282-110.
The Senate, by unanimous consent, also approved the conference report, and the
conference version of the CJS appropriations Act for FY1998 (H.R. 2267) was cleared
for delivery to the President. On November 26, 1997, the President signed the CJS
appropriation, and it became law as P.L. 105-119.