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

September 22, 2021—Thousands of desperate Haitian migrants in Del Rio, Texas deserve due process and compassion. The United States has the capacity to give food, water, and shelter to those waiting under a blazing Texas sun. U.S. and international law require us to give a hearing to their pleas for asylum.  

Right now, the United States is forcibly expelling these asylum seekers, putting them on flights back to Haiti without allowing them any hearing or due process. U.S. law requires that persons who enter the United States and ask for asylum be given a hearing, not forced back to the country they fled. International law forbids refoulement, which is defined as the forcible return of refugees or asylum seekers to a country where they are liable to be subjected to persecution.  

Right now, children and adults sit under a bridge, unsheltered and without adequate water or food. Common human decency demands that we do not let people suffer and die on the doorstep of what is still a nation of plenty.  

“The migrants at Del Rio have crossed oceans and mountains and jungles, enduring tremendous hardship and risking their lives to come here,” said Veena Iyer, executive director of the Immigrant Law Center of Minnesota. “We must respond with compassion rather than condemnation. We must provide the hearing required by our own laws, not expel people to a suffering country that has no capacity to receive them.”  

Just last month, the United States extended Temporary Protected Status to Haitians who arrived in the United States prior to July 29, saying that Haiti was a country “grappling with a deteriorating political crisis, violence, and a staggering increase in human rights abuses.” Haiti, torn by a recent 7.2 level earthquake, by the assassination of its president and continuing disarray of its government, by a growing food crisis, and by a wave of kidnappings and killings, cannot offer even minimal safety to those expelled by the United States.  

We can do better. We must do better.  

This fact sheet is current as of August 17, 2021 

What is DED?  

• Deferred Enforced Departure (DED) is a discretionary protection status.  
• DED recipients are protected from deportation and are allowed to obtain work permits. DED does not provide a pathway to permanent residency or citizenship. 
• DED is authorized under the president’s constitutional discretion to conduct foreign affairs. There is no statutory authorization.  
• Only the president can extend or terminate DED. 

How does DED work?  

• There is no application to apply for DED. Anyone who meets the requirements automatically has DED until it lapses or is terminated. 
• DED is restricted to those people already residing in the United States at the time of designation. Those outside the United States who want to immigrate do not qualify for DED.  
• Individuals must be a national of, or a person without nationality who last habitually resided in, the country designated for DED. 
• DED is usually ordered for up to 18 months. After the designated time, the protection expires. 
• The president can extend DED for additional time periods.  
• Qualified immigrants must apply for Employment Authorization (EAD) under DED, pay a fee, and pass immigration screenings.  
• Any DED-eligible person who wants to travel outside the country must apply for advance parole. 

Who has DED? 

• Liberia DED is designated until June 30, 2022. 
• Venezuela DED is designated until July 20, 2022.  
• Hong Kong DED is designated until February 10, 2023 

Liberia has had DED for the longest period of time. In 2007, President George W. Bush directed that DED be provided for 18 months to certain Liberians (and noncitizens without nationality who last habitually resided in Liberia) in the United States whose Temporary Protected Status (TPS) was expiring on Sept. 30, 2007.  In 2020, Congress passed a law granting Liberians, including those who had DED a path to permanent residence and citizenship. This law is called the Liberian Refugee Immigrant Fairness Act (LRIFA). Liberians must apply for permanent resident status under LRIFA before December 20, 2021. Click here to view ILCM’s fact sheet on LRIFA.  

Venezuela was designated for DED by outgoing President Donald Trump on January 19, 2021, citing the humanitarian crisis created by Nicolás Maduro’s government. Estimates of the number of Venezuelans present in the United States on January 19, 2021 and eligible for DED range from 94,000 to 200,000. BUT – the Biden administration granted Temporary Protected Status (TPS) to Venezuelans. That is a legally different, but very similar, form of protection. 

Venezuelan applicants do not need to apply for both programs. Both TPS and DED protect Venezuelans against removal and allow the opportunity for a work permit. If unsure of what to do, speak to an immigration attorney for more information. 

Two important differences between DED and TPS:  

1. The president declares or ends DED, based on his authority to conduct foreign policy. TPS, however, is established by statute and determined by the Department of Homeland Security.  
2. Termination of TPS for a country is done by the Department of Homeland Security, in consultation with the State Department. Termination of TPS may be subject to court challenge.  

Hong Kong was designated for DED by President Joe Biden on August 5, 2021. President Biden said DED furthers U.S. interests in the region, because, “Over the last year, the PRC has continued its assault on Hong Kong’s autonomy, undermining its remaining democratic processes and institutions, imposing limits on academic freedom, and cracking down on freedom of the press.”  

Printable PDF version of this fact sheet

August 25, 2021— The U.S. evacuation effort has flown tens of thousands of Afghans and U.S. citizens to safety over the past few weeks. Thousands remain in danger. The August 31 deadline for ending evacuation is arbitrary and dangerous. Until everyone is evacuated, we must keep the Kabul airport open and planes flying. 

Tens of thousands of Afghans worked with the U.S. military, U.S. agencies, and U.S. contractors over the past 20 years. They and their families are at risk under the Taliban. Some of those brave allies have already been killed. Only a small fraction of their number have been able, over the years, to gain the protection of Special Immigrant Visas through a complex and backlogged process. With or without SIVs, their safety is our responsibility.  

“Our goal must be to leave no one behind: no refugee left behind, no SIV left behind, no U.S. citizen left behind, no U.S. lawful permanent resident left behind,” said ILCM Executive Director Veena Iyer. “We must evacuate allies, human rights defenders, women, LGTBQ+ people, and other at-risk groups.”  

The Biden administration must continue the humanitarian evacuation beyond August 31. The job is saving lives, not holding to a self-imposed deadline.  With the visa process impossibly slow and backlogged, DHS must use humanitarian parole to save lives. The State Department must help ramp up resettlement efforts for refugees. The United States must make an all-hands-on

For two decades, the U.S. Government has employed Afghan allies to serve alongside U.S. troops, diplomats, and other government employees as interpreters, translators, cultural advisors, drivers, and more. Because of their service to the U.S. mission, our allies’ lives and their families’ lives are at risk. Human rights defenders, women, LGTBQ+ people, and other at-risk groups are also at an almost certain threat of violence and persecution. 

The emergency U.S. evacuation program offers their best chance to live. We must continue this evacuation past August 31. The United States set that deadline. The United States can extend it.  

Call your Senators. Call your Congressional Representative. Contact the White House through this email form. Demand that the administration: 

1) Continue the U.S. evacuation past August 31 to save the lives of our allies and of human rights defenders, women, LGTBQ+ people, and other at-risk groups.  

2) Direct emergency action and funding to support expanded refugee resettlement for Afghans as they arrive in the United States.  

Suggested message:  

I’m urging you to take action to continue the emergency evacuation from Afghanistan and to swiftly provide critical supports including expedited visa processing and access to the refugee resettlement process for family members of U.S. government employees, U.S. government employees not covered by the Afghan Special Immigrant Visa (SIV) program, and other at-risk populations such as human rights defenders, women, LGTBQ+ people, and others.  

For more information, read ILCM Executive Director Veena Iyer’s statement here.