Immigration: Adjustment to Permanent Resident Status Under Section 245(i)
Report for Congress
Immigration: Adjustment to
Permanent Resident Status
Under Section 245(i)
Updated January 15, 2003
Analyst in American National Government
Domestic Social Policy Division
Congressional Research Service ˜ The Library of Congress
Immigration: Adjustment to Permanent Resident Status
Under Section 245(i)
Bills have been introduced in the 108th Congress to extend (H.R. 85) or make
permanent (H.R. 47) a controversial immigration provision known as §245(i).
Section 245(i) of the Immigration and Nationality Act (INA) was first enacted as a
temporary provision in 1994 and has been extended several times since then. It
enables unauthorized aliens in the United States who are eligible for immigrant visas
based on family relationships or job skills to become legal permanent residents
(LPRs) without leaving the country, provided they pay an additional fee. Before an
alien can apply to adjust to LPR status, the alien must have an approved immigrant
visa petition and must have a visa number immediately available to him or her.
Currently, to be eligible to adjust status under §245(i), an unauthorized alien must be
the beneficiary of an immigrant petition or labor certification application filed by
April 30, 2001. An unauthorized alien whose petition or application was not filed
by April 30, 2001 must go overseas for a visa.
Section 245(i) became more significant after 1996, when Congress enacted a
law containing a provision known as the “3 and 10 year bars.” Now an alien who is
unlawfully present in the United States for more than 180 days and then leaves the
country is barred from re-admission for either 3 or 10 years, depending on the length
of the illegal stay. By enabling eligible aliens to become LPRs without departing the
country to obtain visas, §245(i) shields them from the effects of these bars.
The 107th Congress considered, but did not enact, §245(i) extension legislation.
In September 2001, the Senate amended and passed H.R. 1885. As amended by the
Senate, H.R. 1885 would have extended the deadline under §245(i) for filing
immigrant petitions or labor certification applications to the earlier of April 30, 2002,
or the date that was 120 days after the Attorney General issued final regulations. In
March 2002, the House passed H.Res. 365, in which it concurred in the Senate
amendment to H.R. 1885 with additional amendments. The House amended the
Senate-passed §245(i) language to extend the filing deadline to the earlier of
November 30, 2002, or the date that was 120 days after the Attorney General issued
final regulations. In addition, both the House-passed and Senate-passed bills would
have added new restrictions to §245(i).
In the 108th Congress, H.R. 85 would extend the deadline under §245(i) for
filing immigrant petitions or labor certification applications until April 30, 2002.
H.R. 47 would eliminate existing filing deadlines to make §245(i) a permanent
provision of the INA.
Section 245(i) sparks heated debate. Supporters characterize it as a humane,
pro-family measure that enables prospective immigrants present in the United States
to remain with their families while they go through the process of becoming LPRs.
Opponents counter that §245(i) is an amnesty provision that rewards lawbreakers and
encourages illegal immigration.
This report will be updated as legislative developments occur.
Obtaining Legal Permanent Residence.................................1
Adjustment of Status Under §245(i)...................................2
1996 Immigration Law......................................4
106 Congress Extension of §245(i)...........................5
Immigration Status of Prospective Beneficiaries......................5
Actions of the 107th Congress........................................5
Actions of the 108th Congress........................................7
Number of §245(i) Extension Beneficiaries.............................8
Immigration: Adjustment to
Permanent Resident Status
Under Section 245(i)
Obtaining Legal Permanent Residence
Under the Immigration and Nationality Act (INA), as amended,1 immigrants are
aliens who are lawfully admitted to the United States for permanent residence. They
are also referred to as legal permanent residents (LPRs). They either arrive in the
United States with immigrant visas issued abroad (and become LPRs upon
admission), or they adjust their immigration status to permanent resident status in the
United States. Adjustment of status is the process under immigration law by which
an eligible alien in the United States obtains LPR status without leaving the country.
Most aliens who become LPRs are eligible for that status on the basis of a close
family relationship to a U.S. citizen or LPR (family-sponsored immigration), job
skills needed by a U.S. employer (employment-based immigration), or humanitarian
circumstances. Family-sponsored and employment-based permanent immigration are
both subject to a complex set of numerical limits and preference categories.2 Among
family-sponsored immigrants, only the immediate relatives of U.S. citizens — minor
children, spouses, and parents if the citizen is at least age 21 — are admitted outside
the preference system and are not subject to direct numerical limits. Within the
family-sponsored preference system, there are four preference categories. First
preference, for example, is given to the unmarried adult sons and daughters of U.S.
citizens. Employment-based immigration is subject to a similar ranked system with
five preference categories. Within the employment-based preference system, aliens
who are members of the professions with advanced degrees and aliens of exceptional
ability, for example, may petition under the second preference category.
The process of becoming an LPR on the basis of either a family relationship or
job skills has multiple steps. In the case of a prospective family-sponsored
immigrant, the sponsoring family member must first file an immigrant visa petition
on behalf of the alien with the Immigration and Naturalization Service (INS). If the
petition is approved, the State Department then must determine if a visa number is
immediately available to the alien. Because of the numerical limits and their
allocation among the various preference categories and countries of origin, it can take
1 Act of June 27, 1952, ch. 477; 8 U.S.C. 1101 et seq. INA is the basis of current
immigration law. For background, see: CRS Report RS20916, Immigration and
Naturalization Fundamentals, by Ruth Ellen Wasem.
2 Humanitarian immigrants will not be covered in this report because §245(i) does not apply
many years between the time a family-sponsored immigrant petition is filed and a
visa number becomes immediately available to an alien. When a visa number
becomes immediately available, the alien can apply for assignment of a visa number.
Aliens who are outside the United States must go to a U.S. consulate or embassy in
their country of origin to complete the processing. Aliens within the United States
when a visa number becomes immediately available may be able to apply to adjust
status here, as discussed below.
The process for prospective employment-based immigrants is similar, but may
require an additional step at the beginning of the process. In some preference
categories, before an employer can file an immigrant petition on behalf of an alien,
the employer must first apply for labor certification from the U.S. Department of
Labor (DOL). Labor certification reflects a finding by DOL that there are not
sufficient U.S. workers available to perform the work, and that the employment of
alien workers will not adversely affect the wages and working conditions of similarly
employed U.S. workers. The visa process for employment-based immigrants is the
same as for family-sponsored immigrants. Due to some recent changes in the
employment-based preference system, however, these immigrants have not been
experiencing waits for visa numbers.
The INA (§212) enumerates grounds of inadmissibility — grounds upon which
aliens are ineligible for visas and admission. They include security- and terrorism-
related grounds, immigration law violations, and public charge (the likelihood that
an alien will require public support). Some grounds of inadmissibility may be
waived by the Attorney General, as specified in the INA. As part of the process of
becoming an LPR, family-sponsored and employment-based immigrants, like all
aliens seeking legal admission to the United States, must be found to be admissible
to the country. They must satisfy State Department consular officials abroad that
they are not ineligible for visas, and they must satisfy INS inspectors upon entry to
the United States that they are not ineligible for admission.3
Adjustment of Status Under §245(i)
As mentioned above, aliens who are in the United States when a visa number
becomes immediately available to them may be able to apply to adjust to permanent
resident status without going abroad to obtain a visa. Section 245 of the INA sets
forth the eligibility requirements for adjustment of status, which can be granted at the
discretion of the Attorney General. Prior to October 1994, only aliens who had been
legally admitted or paroled4 into the United States and, with limited exceptions, had
3 Under current procedures, aliens adjusting status in the United States are not subject to
background checks by State Department officials, but must satisfy INS officials in the
United States that they are admissible.
4 Parole is the discretionary authority granted to the Attorney General under the INA to
maintained a lawful status since entry were eligible for adjustment of status. This
provision primarily benefitted nonimmigrants — aliens legally admitted to the United
States for a temporary and specific purpose, such as foreign students — who were
eligible for LPR status.
In 1994, adjustment of status under §245 became available to unauthorized
(illegally present) aliens in the United States, with the enactment of the FY1995
Commerce, Justice, State (CJS) Appropriations Act.5 This act added a new,
temporary Subsection (i) to §245 that enabled unauthorized aliens who were eligible
for an immigrant visa, had a visa number immediately available to them, and were
admissible for permanent residence, to adjust status in the United States provided
they paid an additional fee. The additional fee was set at 5 times the normal fee and,
at the time, totaled $650. As specified in the FY1995 CJS Appropriations Act,
§245(i) was to take effect on October 1, 1994, and to expire on October 1, 1997.
In its report on the FY1995 CJS appropriations bill, the Senate Appropriations
Committee explained the rationale behind the new §245(i). According to the
committee, the requirement that unauthorized aliens obtain their visas abroad was
“originally designed to dissuade aliens from circumventing normal visa
requirements” (and entering the United States before their visas became available).
The committee concluded, however, that this process “has not provided the intended
deterrent effect and merely creates consular workload overseas” (as aliens in the
United States travel abroad to obtain visas).6
INS published an interim rule in October 1994 to implement §245(i).7 In
information accompanying the rule, the agency echoed the Senate Appropriations
Committee’s view that the existing requirements had “burdened” consular officials
abroad. INS also identified a burden placed on the intending immigrants, while, at
the same time, characterizing them as immigration law violators. It seemed to
suggest that §245(i) struck a balance between these competing concerns:
This rule [to implement §245] allows prospective lawful permanent residents to
avoid the difficulties and expense of travel to a United States consulate or
allow an alien to enter the United States temporarily (but not to be formally admitted) for
urgent humanitarian reasons or when the entry is determined to be for significant public
5 P.L. 103-317, August 26, 1994.
6 U.S. Congress. Senate. Committee on Appropriations. Departments of Commerce,
Justice, and State, the Judiciary, and Related Agencies Appropriation Bill, 1995 and
Supplemental Appropriations Bill, 1994. Report to accompany H.R. 4603. H.Rept. 103-rdnd
7 U.S. Department of Justice. Immigration and Naturalization Service. Adjustment of Status
to That of Person Admitted for Permanent Residence; Temporary Removal of Certain
Restrictions of Eligibility. Federal Register, v. 59, no. 194, October 7, 1994. p. 51091-
embassy abroad. It continues, however, to penalize these violators of the
immigration laws by requiring most applicants to pay an additional sum in excess8
of the standard adjustment of status filing fee.
1996 Immigration Law. Section 245(i) took on added significance with the
enactment of the Illegal Immigration Reform and Immigrant Responsibility Act
(IIRIRA) of 1996.9 Under a provision of IIRIRA known as the “3 and 10 year bars,”
an alien who is unlawfully present in the United States for more than 180 days and
then leaves the country, is barred from admission for a set number of years,10
depending on the length of the illegal stay. Those who are unlawfully present for
more than 180 days but less than 1 year are inadmissible for 3 years; those who are
unlawfully present for 1 year or more are inadmissible for 10 years. Prospective
LPRs who are unlawfully present in the United States for more than 180 days and go
abroad to obtain their visas would be subject to these bars upon trying to re-enter the
country. By enabling eligible aliens to become LPRs without leaving the country,
§245(i) shields them from the effects of the 3 and 10 year bars. A separate provision
of IIRIRA raised the additional fee for §245(i) applicants to $1,000.
Act, enacted in November 1997, revised and extended §245(i). Between the
original October 1, 1997 sunset date and passage of this act, the 105th Congress
provided for short-term extensions of the sunset date in a series of continuing
resolutions. The Senate-passed version of the FY1998 CJS Appropriations bill had
contained a permanent extension of §245(i), while the House-passed bill had been
silent on §245(i). The §245(i) provision included in the conference agreement
repealed the October 1, 1997 sunset date, and instead placed a deadline of January
14, 1998, on the filing of immigrant visa petitions for family members and employees
and on the filing of labor certification applications. Unlike the original 1994
provision, the 1997 amendment made adjustment of status under §245(i) available
to all eligible unauthorized aliens who were beneficiaries of immigrant petitions or
labor certification applications filed by January 14, 1998. It did not matter how long
it took after that deadline for the visa process to be completed or for the adjustment
of status application to be filed.
In addition to amending §245(i), the FY1998 CJS Appropriations Act added a12
new Subsection (k) to §245. Section 245(k) applies to aliens eligible for certain
employment-based visas who have been lawfully admitted to the United States and
who, subsequent to that admission, have not been in an unauthorized status or have
8 Ibid., p. 51092.
9 IIRIRA is Division C of the 1997 Omnibus Consolidated Appropriations Act (P.L. 104-
10 IIRIRA, §301(b)(1); INA §212(a)(9)(B)(i).
11 P.L. 105-119, November 26, 1997, §111(a), (b).
12 P.L. 105-119, §111(c).
not engaged in unauthorized employment for more than 180 days.13 Under §245(k),
aliens meeting these requirements can apply for adjustment of status under the main
§245(a) adjustment of status provision for legal aliens. Unlike §245(i), §245(k) is
a permanent provision with no deadlines and does not require the payment of an
106th Congress Extension of §245(i). The January 14, 1998 filing
deadline under §245(i) remained in effect until the end of the 106th Congress. The
Legal Immigration Family Equity (LIFE) Act Amendments of 2000, enacted on
December 21, 2000 as part of the FY2001 Consolidated Appropriations Act, included14
a provision to extend and modify §245(i). This provision extended the deadline for
filing immigrant visa petitions or labor certification applications until April 30, 2001.
It also added a new requirement that beneficiaries of petitions or applications filed
after January 14, 1998, had to be present in the United States on the date of15
enactment of the LIFE Act Amendments.
Immigration Status of Prospective Beneficiaries
As explained above, unauthorized aliens who are prospective beneficiaries of
§245(i) must wait for visa numbers to become immediately available to them before
they can file adjustment of status applications. During this waiting period, they are
still considered to be illegally present in the country. They cannot legally work and
are subject to removal on the basis of their illegal status. Once visa numbers become
immediately available to them and they properly file adjustment of status
applications, they are considered to be in a period of stay authorized by the Attorney
General and can apply for work authorization. According to INS, during the
pendency of their adjustment applications, they are not subject to removal on the
basis of their immigration status, but could be removed on other grounds, such as
Actions of the 107th Congress
INS did not publish regulations implementing the new §245(i) provision until
March 26, 2001, a little over a month before the April 30, 2001 filing deadline.
Immigration advocates cited this delay in calling for a further extension of the filing
deadline. In a May 1, 2001 letter to House Speaker Dennis Hastert, President George
W. Bush similarly questioned whether eligible individuals had adequate time to apply
and expressed support for extending the filing deadline. He argued that it was “in our
13 This provision could apply, for example, to an alien who entered the United States legally
on a nonimmigrant visa and then remained in the United States beyond the authorized period
of stay, for up to 180 days.
14 P.L. 106-554, December 21, 2000, Title XV, §1502. Title XV amended the Legal
Immigration Family Equity Act (LIFE; Title XI of P.L. 106-553).
15 For a fuller discussion of the LIFE Act and related issues, see: CRS Report RL30780,
Immigration Legalization and Status Adjustment Legislation, by Ruth Ellen Wasem.
16 Conversation with Michael Hardin, INS Adjudications Division, March 27, 2002.
national interest to legitimize those resident immigrants eligible for legal status,” but
that it would be impossible to do so if we required them to return to their home
countries and be separated from their families for up to 10 years (in accordance with
the 3 and 10 year bars, discussed above). While the President indicated his support
for extending the April 30, 2001 filing deadline, he did not recommend a new
deadl i n e. 17
Multiple bills to extend the filing deadline were introduced in the 107th
Congress. S. 778, introduced in April 2001 by Senator Chuck Hagel, proposed to
extend the deadline for filing immigrant petitions or labor certification applications
until April 30, 2002. In July 2001, the Senate Judiciary Committee reported S. 778
with amendments.18 As amended by the Committee, S. 778 would have extended the
filing deadline to April 30, 2002, and would have imposed a new restriction. In the
case of petitions or applications filed after January 14, 1998, the bill would have
required the beneficiaries to show that the underlying family or employment
relationship existed on or before the date of enactment.
H.R. 1885, as introduced in May 2001 by Representative George Gekas, would
have amended the deadline under §245(i) to require that immigrant petitions or labor
certification applications be filed by the current April 30, 2001 deadline or during a
120-day period beginning on the date of enactment. In the case of petitions or
applications filed after January 14, 1998, H.R. 1885 also would have required that
the underlying family or employment relationship have existed by April 30, 2001.
In this way, H.R. 1885, as introduced, would not have made any additional
unauthorized aliens eligible to adjust status under §245(i). Rather, it would have
given those individuals who were eligible under the previous extension additional
time to have their petitions or labor certification applications filed. On May 21,
2001, the House passed H.R. 1885 without amendments under suspension of the
rules by a vote of 336 to 43.
On September 6, 2001, the Senate passed H.R. 1885 with an amendment by
unanimous consent. The Senate-passed version of the bill would have extended the
filing deadline to the earlier of April 30, 2002, or the date that was 120 days after the
Attorney General promulgated final regulations. In the case of immigrant petitions
or labor certification applications filed after April 30, 2001, it also would have
required the beneficiaries to show that the underlying family relationship existed
before August 15, 2001, or the labor certification application was filed before August
17 U.S. President (G. W. Bush). A Letter Regarding Section 245(i) of the Immigration and
Nationality Act. H.Doc. 107-62, 107th Cong., 1st Sess. May 1, 2001.
18 The Committee did not issue a written report.
The House was scheduled to consider H.R. 1885, as passed by the Senate, under
suspension of the rules on September 11, 2001, but the events of that day precluded
House action. A subsequent effort in the House in December 2001 to consider a
§245(i) extension provision as part of border security and visa entry reform
legislation (H.R. 3525) failed. Opponents of such an extension succeeded in
stripping the provision from H.R. 3525 prior to House consideration and passage of
President Bush, in advance of a scheduled meeting with Mexican President
Vicente Fox on March 22, 2002, again urged Congress to extend §245(i). On March
In H.Res. 365, the House concurred in the Senate amendment to H.R. 1885 with
additional amendments. The House amended the Senate-passed §245(i) provision
by changing the filing deadline to the earlier of November 30, 2002 (as compared to
April 30, 2002, in the Senate-passed version) or the date that was 120 days after the
Attorney General promulgated final regulations. It retained the Senate-approved
requirement that beneficiaries of immigrant petitions filed after April 30, 2001, show
that the underlying family relationship existed before August 15, 2001, or that the
labor certification application was filed before August 15, 2001. In addition,
pursuant to H.Res. 365, the House attached the text of previously enacted border
security legislation (H.R. 3525) to H.R. 1885. Thus, H.R. 1885, which had been a
discrete §245(i) extension bill, became a border security bill with a §245(i) extension
provision (§607 of the new H.R. 1885). Attaching H.R. 3525 to §245(i) extension
legislation was widely seen as an attempt on the part of the House to prompt the
Senate to act on border security legislation. In April 2002, however, the Senate opted
to take up H.R. 3525, as initially passed by the House without a §245(i) provision,
rather than the larger H.R. 1885. No §245(i) floor amendments were offered during
Senate consideration of H.R. 3525, and the Senate passed the border security measure
without a §245(i) provision.19
During a May 2002 markup of FY2002 supplemental appropriations legislation
(H.R. 4775), the House Appropriations Committee considered an amendment to
extend §245(i). The amendment would have extended the filing deadline under
§245(i) until November 30, 2002. It was defeated on a vote of 27 to 32.
Actions of the 108th Congress
H.R. 85, introduced in January 2003 by Representative Sheila Jackson-Lee,
would change the deadline under §245(i) for filing immigrant petitions or labor
certification applications from the current April 30, 2001 date to April 30, 2002.
Unlike the bills approved by the House and Senate during the 107th Congress, it
19 On May 14, 2002, H.R. 3525 was signed into law (P.L. 107-173).
would not set any earlier deadlines for establishing the existence of the underlying
family or employment relationship. H.R. 47, introduced by Representative John
Conyers in January 2003, would eliminate the filing deadlines under §245(i) to make
the provision permanent. Both bills have been referred to the House Judiciary
Number of §245(i) Extension Beneficiaries
Consideration of §245(i) extension bills by the 107th Congress prompted
questions about how many unauthorized aliens had adjusted status under past
extensions and how many might be eligible to adjust under the then-pending
proposals. Similar questions can be expected if the 108th Congress takes up 245(i)
legislation. As discussed below, it is not possible using currently available INS data
to determine the number of aliens who benefitted from past extensions of §245(i).
INS, however, does have some recent, if limited, data relevant to a discussion of
§245(i). According to INS, in FY2001, it received a total of about 640,00020
adjustment of status applications. Of these, some 215,000 were filed under §245(i).
INS does not have data on §245(i) application approvals.
Problems arise in attempting to tie these 215,000 FY2001 §245(i) adjustment
applicants to a particular extension of §245(i). Given the multi-step process of
obtaining LPR status, it is not known how many of the FY2001 applicants were
covered by the current April 30, 2001 deadline for the filing of immigrant petitions
or labor certification applications and how many were covered by prior deadlines.
As explained above, filing deadlines apply only to the filing of the initial petitions or
applications by sponsors. After the filing of immigrant petitions, beneficiaries must
wait — sometimes for many years — for the petitions to be approved and for visa
numbers to become immediately available to them before they can file adjustment of
status applications. In light of these time lags, it seems reasonable to assume that
many of the unauthorized alien beneficiaries of petitions or applications received by
INS in FY2001 were filed by aliens covered by the January 14, 1998 deadline that
preceded the current deadline, and that many of the beneficiaries of the current April
30, 2001 filing deadline may not show up in INS statistics on adjustment application
receipts until FY2002 or later. With respect to the §245(i) extension provisionth
passed by the House in H.Res. 365 in the 107 Congress, INS estimated that there
would have been approximately 300,000 potential beneficiaries.21
20 INS has comparable data for FY1995 (about 183,000 §245(i) adjustment of status
applications received) and FY1996 (about 224,000 §245(i) adjustment of status applications
received). For other years, data on adjustment of status application receipts do not
distinguish between §245(i) applications and other adjustment applications.
21 Conversation with Don Neufeld, INS Immigration Services Division, March 19, 2002.
Section 245(i) is a controversial immigration provision and arguably has
become more so in the wake of the September 11 terrorist attacks. Supporters argue
that §245(i) bestows no special rights and only benefits aliens who are eligible for
legal permanent residency on the basis of family or employment ties. They
characterize it as a practical, humane, pro-family measure that enables prospective
immigrants present in the United States to remain with their families while they go
through the long process of becoming LPRs. In addition, proponents argue that
§245(i) prevents disruptions to the economy by enabling these prospective
immigrants to continue performing their jobs. More broadly, §245(i) supporters
maintain that it is in the national interest to fully integrate resident prospective
immigrants into society.
Opponents characterize §245(i) as an amnesty and maintain that it rewards those
who violate immigration laws. They argue that it undermines immigration law
generally and IIRIRA’s “3 and 10 year bar” provision (see above) in particular, which
was intended to deter illegal presence. They further argue that §245(i) promotes
fraud, as unauthorized aliens enter sham relationships in order to take advantage of
the provision. Opponents contend that §245(i) (and the expectation of future
extensions) encourages illegal immigration by giving aliens a tangible incentive to
enter the country illegally rather than wait overseas to complete the visa process.
They maintain that this is unfair to prospective immigrants overseas who follow
proper procedures and endure long waits and separations from their families in order
to enter the United States legally.
Since September 11, both supporters and opponents of §245(i) have cited
security- and terrorism-related concerns in making their arguments. Supporters point
out that beneficiaries of §245(i) are subject to background checks. More generally,
they maintain that in the absence of §245(i), many unauthorized aliens would choose
to remain underground, subject to no checks and representing potential security
threats. Opponents counter that the background checks performed on §245(i)
applicants in the United States are not as comprehensive as those performed on visa
applicants abroad, where State Department officials also check for criminal records
in the applicants’ home countries. They contend §245(i) is a possible avenue for
potential terrorists to legalize their immigration status.