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Fact Sheet: Immigration Reform Through INA Section 245(i) and Registry

Posted on Oct 04 2021

This fact sheet is current as of October 4, 2021. This is general information and not to be considered as legal advice.

Congress is considering creating a pathway to citizenship for Dreamers, TPS holders, and essential workers. The Senate Parliamentarian said the Biden administration proposals for a path to citizenship do not belong in the budget reconciliation bill. Two proposals are based on legal provisions that are already in immigration law: Registry and Section 245(i). While both already exist in immigration law,  the last Section 245(i) eligibility dates was in 2001. The current date by which continuous presence had to begin in order to qualify for Registry is so far back that it makes Registry almost unusable.

Both Section 245(i) and Registry could be reauthorized with new dates, meaning only a change in date, not in the entire immigration law. Each of these is explained below.

Section 245(i) of the Immigration and Nationality Act:

What is section 245(i) of the Immigration and Nationality Act?

Section 245(i) allows immigrants to process their green card applications in the United States. This option is currently not available to immigrants who are eligible for green cards but (1) last entered the United States without permission, (2) failed to maintain lawful immigration status, and/or (3) worked without authorization.

Why is section 245(i) important?

Generally, immigrants who are eligible for green cards must leave the United States to process their green cards if they entered without permission, failed to maintain lawful immigration status, and/or worked without authorization. Section 245(i) waives these restrictions allows these immigrants to apply for and process their green cards without having to leave the United States.

245(i) facilitates family unification by allowing a green card application to remain with their family during the entire immigration process.  During the years that any immigration case takes to complete, they are also eligible for employment authorization, and they can use their legally earned income to prove they are not likely to become public charges. Additionally, it avoids the possibility of long-term family separations that can occur when an immigrant leaves the country for green card processing and then becomes subject to three- or ten-year bars to entering the United States because of unlawful presence.

245(i) requires the applicant to pay a $1000 “penalty,” which  makes the program self-funded.  In addition, it greatly reduces the workload in the US consulates by keeping applications in the US.

Who is currently eligible to get a green card under section 245(i)?

No one is currently eligible to apply for a green card under section 245(i). To be eligible for a green card under the section now, an immigrant must have been named in a family-based or employment-based immigration application on or before April 30, 2001.

Would adopting a new date for section 245(i) create a pathway to citizenship for DREAMers, those with TPS, and essential workers?

Section 245(i) would provide a pathway to citizenship for millions of immigrants who are eligible for green cards through their family relationships or employers, but who are not practically able to complete this process because it could involve years of separation from their families. However, section 245(i) does not create new categories of individuals eligible for green card holders. Therefore, there are many immigrants with DACA, TPS, and essential jobs who would not be eligible because they do not have qualifying family relationships or jobs and employers that can sponsor them.

If the filing deadline was more than twenty years ago, why does Section 245(i) matter now?

When section 245(i) was enacted, an immigrant must have had an immigration petition filed for them on or before October 1, 1997 to be eligible.  Congress, through the Legal Immigration Family Equity (“LIFE”) Act, extended that deadline to April 30, 2001.  245(i) was on track to be extended once again, and with the support of then-INS and the State Department but was tabled as the focus turned to immigration restrictions in the wake of 9/11.  It has been inactive ever since.  However, Congress has the power to extend the section 245(i) deadline once again.

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 would extend the filing deadline for section 245(i) from April 30, 2001, to five years following the enactment of the Fairness for Immigrant Families Act. Meaning, if the Fairness for Immigrant Families Act is enacted in 2021, the section 245(i) deadline would be extended to a specific date in 2026.

Why is Congress trying to revive Section 245(i)?

On September 19, 2021, the Senate Parliamentarian told Congressional Democrats that they could not include immigration reform in a budget bill. Therefore, Congressional Democrats are looking for another way to create a pathway to citizenship for some of the millions of undocumented Americans living and working In the United States, including extending the filing deadline for section 245(i).

Green Card Through Registry:

What is “Registry”?

Registry is a section of immigration law that allows immigrants who have resided in the United States since January 1, 1972, to apply for legal permanent residency, i.e., a green card. Registry allows immigrants to apply for a green card even if they are currently in the United States without legal immigration status.

Why is registry important?

Registry recognizes that people who have spent decades in the United States are deserving of protection of the life they have built, and of having a legal status.  The Registry program allows immigrants who entered the United States without permission and/or who may not have US citizen relatives who can request visas for them to obtain a path to citizenship and to have the peace of mind of knowing that they can remain here.

What is the history of registry?

The registry provision originated in a 1929 law and required that an immigrant enter the United States on or before June 3, 1921 to be eligible. The registry provision was updated several times since 1929, most commonly by changing the registry date. However, the registry date has not been changed since it was set at January 1, 1972 in 1986, where it stands today.

Who is currently eligible to get a green card through registry?

Any immigrant who: 1) entered the United States prior to January 1, 1972; 2) resided in the United States continuously since entering; 3) is a person of good moral character; 4) is not ineligible for naturalization (citizenship); and 5) has not been convicted of certain criminal offenses, i.e., crimes that make an immigrant deportable or inadmissible.

If an immigrant must have entered the United States before January 1, 1972 to adjust through registry, why is it relevant in 2021?

Historically, the Registry eligibility date has been moved forward every 25-30 years.  Democrats most recent efforts to include immigration reform in the 2021 budget bill have failed, therefore lawmakers are looking for other immigration reform options. Because Congress has extended the registry date in the past, there is currently a discussion among lawmakers to update the registry dateExtending the registry deadline would allow DREAMers, TPS holders, and immigrant essential workers to apply for a green card and eventually citizenship so long as they entered the United States prior to the Registry date and meet all other Registry criteria