September 7, 2001
Further Clarification on the 245(i) Compromise
The following clarification is in response to a number of questions that AILA has received about the meaning of the compromise measure to extend section 245(i), discussed in the item below. It appears that, under the compromise, many immigrant petitions filed before either April 30, 2002 or four months after regulations are issued (it is not clear whether it is the earlier or the later of these two dates) would form the basis for 245(i) eligibility. However, there are some important exceptions.
For family cases, the family relationship must have existed before August 15, 2001. In essence, this means that the 245(i) extension would not be applicable to marriage-based petitions where the marriage was not entered into before last month. Similarly, for employment cases based on labor certifications, the labor certification application must have been filed by August 15, 2001. This means that the 245(i) extension would not be applicable to new labor certification applications not filed before last month. However, the extension would be applicable to employment-based petitions that do not require a labor certification.
The compromise deleted a provision reported earlier on InfoNet that would have required, for employment-based cases, that the employment relationship have existed prior to April 30, 2001. This provision was retroactive in effect, and thus would have effectively cancelled 245(i) eligibility for a large percentage of the labor certification applications filed before the last 245(i) deadline. That provision is no longer in the bill. Also, the date by which the family relationship must have been entered into was moved in the compromise from April 30, 2001 to August 15, 2001.
September 7, 2001
Compromise Reached on 245(i)
Agreement was reached Thursday night, September 6, on an extension of Section 245(i), with the Senate passing this agreement late Thursday evening and the House expected to pass this revised version shortly.
While we all think that Section 245(i) should have been permanently restored, rather than just extended, we were concerned that the extension measures that the Senate Judiciary Committee and the House passed were deeply flawed due to a new requirement that the familial or employment relationship that is the basis for the petition or application needed to have existed on or before April 30 (House version) or date of enactment (Senate version). Furthermore, this requirement was to have been applied retroactively to filings made after January 14, 1998. We believed that no new requirement was warranted.
There is some good news to report on ameliorating the new requirement. It was changed in the compromise to delete any reference to "employment relationship," and the new requirement is not retroactively applied. Also, the House agreed to an August 15, 2001 date (instead of the April 30 date). The Senate bill now states that those who file after April 30, 2001 must demonstrate that the "familial relationship existed before August 15, 2001, or the application for labor certification that is the basis of such petition for classification was filed before August 15, 2001." (August 15 was the compromise date agreed upon.)
Unfortunately, the compromise bill made no changes on the family-based requirement definition, the relationship mandated in the underlying requirement needs to have existed by August 15, 2001, and the 245(i) extension for labor certification application-based cases is effectively already past.
While the language is a bit unclear on the length of the overall extension, Senate staffers report that the extension will sunset four months after the regulations are issued. Reading the text of the bill, however, suggests that the extension will end April 30, 2002. We will clarify the length of the extension as soon as possible.
Senators Kennedy and Daschle and their staff, Esther Olavarria and Andrea LaRue, deserve our thanks for their leadership and work on this extension.
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