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For further question or
to find out if you or your relative is qualified in new law
please contact
Law Offices of Kevin C. Guanaga,
Esq.
E-mail: emigrator@earthlink.net
Tel. (305) 595-3784 Fax (305) 595-4648
or
Submit
Your Questions: immigration@webbangladesh.com
Section
245(i)
New Restrictions Punish Employers Who Have Abided by the Law
and
Unnecessarily Punish Innocent Families
The
House-passed limited extension of Section 245(i) (H.R. 1885)
and the version that passed the Senate Judiciary Committee (S.
778) both include a new provision that would require
beneficiaries to demonstrate that the required "familial
or employment relationship" existed on or before April
30, 2001 (in the House bill) or date of enactment (in the
Senate bill). Importantly, this new requirement is retroactive
to January 14, 1998. This statement lays out AILA's opposition
to the new requirement.
Background: Section 245(i) would allow eligible people to
adjust their status in the U.S. when their immigrant visas
become available. Immigrants who adjust their status under
this provision pay a steep fine for having been in the U.S.
illegally, and in return are not forced to endure a separation
from their family or employer for a three- or ten-year period.
Both H.R. 1885 and S. 778 would extend the period of time
within which eligible people can file their petitions and
applications with the Immigration and Naturalization Service
(INS) and the Department of Labor (DOL).
Section 245(i) was temporarily reinstated into immigration
law, after having expired in January 1998, by the Legal
Immigrant Family Equity Act (LIFE Act) enacted in 2000. The
LIFE Act provided a window of just four months during which
time persons wanting to petition for a family member or
employee had to file with the INS or DOL. By the deadline,
April 30, 2001, many were unable to file a petition for a
variety of reasons.
What is the New Requirement in H.R. 1885 and S. 778 and Why
Should it be Deleted: Both H.R. 1885 and S. 778 extend Section
245(i). (H.R. 1885 for a mere four months, and S. 778 until
April 30, 2002.) While AILA supports at least a one-year
extension to allow sufficient time for people to file their
applications and adjustments, the new requirement in both
bills poses significant problems. On the family-based side,
this requirement will preclude eligible, innocent families
from using Section 245(i) simply because many still will not
know they need to file and what they will need to file before
a certain date, and others, while in bona fide relationships,
have yet to get married. There is no need to set an artificial
deadline to establish bona fide family relationships. Existing
immigration laws already require applicants for immigrant
visas to document their "marriage" in good faith
with proof that they did not marry solely to obtain an
immigration benefit. Furthermore, the law already limits
eligibility for Section 245(i) to those people who had resided
in the U.S. prior to December 21, 2000, thus avoiding any
possibility that people will enter the US in order to take
advantage of the new extension.
On the employer side, the new provision would require
employers to violate existing law: In order to obtain the
benefits of Section 245(i), employers would have to unlawfully
employ a foreign worker in violation of immigration law. The
new requirement mandates that the relationship (that is the
basis for the application) existed between the employer and
the worker prior to either April 30, 2001 (in the House bill)
or the date of enactment (in the Senate bill). Importantly,
this new requirement is written so that it would apply
retroactively to any application submitted after January 14,
1998. Yet it is illegal for an employer to establish this
relationship by hiring an undocumented worker.
Under existing law, Section 245(i) requires that the employer
simply make an offer to employ a worker at the time the worker
adjusts status to legal permanent resident, and does not
require that an employment relationship be established because
to do so would violate the law. Because of the new
requirement, Section 245(i) would be available only to
employers who violated the law and established an illegal
relationship with an employee prior to April 30 or the date of
enactment. This requirement would penalize employers who
followed current law and only made an offer of employment, and
did not actually hire the worker illegally.
Even worse, because of the retroactive language, the new
restrictions would invalidate the applications of thousands of
employers who followed the law and properly submitted an
application after January 14, 1998 but on or before April 30
on behalf of workers they had not yet hired. The new
requirement changes the rules in the middle of the game by
mandating an existing employment relationship that, by law,
cannot legally exist and did not exist. Those employers who
prior to this new requirement followed the law in submitting
their applications would be out of luck if the new retroactive
requirement becomes law. Although they already have submitted
their applications, they will now be unable to meet the new
requirement's standard. These employers will be denied the
benefit of Section 245(i) because they cannot prove that they
violated the law by hiring an undocumented worker.
Furthermore, allowing the retroactive language to apply to
prior fillings and thereby substantially altering the
eligibility for thousands of applications and petitions
already filed with and processed by the Immigration and
Naturalization Service (INS) and the Department of Labor,
would have other negative consequences. It would result in an
enormous waste of resources and time by government employees
who would have to process these filed petitions based on the
new requirement's mandate. It also would result in
administrative, accounting and funding nightmares for the INS.
If the retroactive language is applied to applications that
were properly filed at the time the fee was paid, the INS
probably will be required to refund the filing fees of these
applications because they do not meet the new requirement. In
addition, the retroactive application will no doubt result in
litigation against the INS' implementation of the statute,
thereby resulting in an enormous waste of government
resources.
AILA's Position: AILA supports the extension of Section
245(i). Under current law, Section 245(i) is pro-business and
pro-family. However, the new requirement in the extension
bills passed by House and Senate Judiciary Committee requiring
a pre-existing family and employment relationship is both bad
law and bad policy. Making the new requirement retroactive is
even worse. AILA will oppose any extension of Section 245(i)
that includes a provision that requires employers to violate
the law in order to use Section 245(i) and implements this
requirement retroactively.
Need
to know more about this law
or
If you should seek immediate legal assistance, please contact
directly the
Law Offices of Kevin C. Guanaga, Esq.
E-mail: emigrator@earthlink.net
Tel. (305) 595-3784
Fax (305) 595-4648
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Your Questions:
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