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Recommendations On Positive Immigration Options That The Administration Should Explore

by Alan Lee, Esq.

In light of the President's win on health care reform, his administration appears poised to reenergize its base in time for the November elections. However, whether he can move the many millions of pro-immigrant voters who proved decisive for him in swing states to the polls to support the hopes of Democratic senators and congressman up for reelection will depend upon the strength of his push forward in the next seven months. We again urge a massive movement forward on the immigration issue, whether for Comprehensive Immigration Reform (CIR), or in moving forward the date for Registry, or the date of Section 245(i). CIR has already been discussed by the Obama administration with signs of incipient bipartisanship by Senators Chuck Schumer (D) of New York and Lindsey Graham (R) of South Carolina. Registry has not been discussed, but should certainly be in the mix as any action could be done quickly. Registry is a device which has been in the immigration law since 1952 (Section 249 of the Immigration and Nationality Act) , grants permanent residence, and only needs to be updated in time to benefit applicants. The last updating was done in the Reagan backed Immigration Reform and Control Act of 1986, which advanced the benefit date to 1972 from 1948. It is currently available to persons who are not criminals, procurers and other immoral persons, subversives, violators of the narcotics law or smugglers of aliens who establish that they entered the United States before January 1, 1972; have continuously resided in the U.S. since the time of such entry; are persons of good moral character; and are not ineligible for citizenship and not deportable as terrorists. In the present version of Section 245(i), most illegal individuals having a basis for immigration can interview for adjustment of status to permanent residence in the United States instead of interviewing overseas at an American consulate or embassy and being subject to three or ten year bars because of their illegal stay for 180 days or one year respectively after April 1, 1997, so long as they filed a labor certification application or immigrant visa petition by April 30, 2001; and prove that they were physically present in the U.S. on December 21, 2000. The current fee for Section 245(i) is $1,000 on top of the usual I-485 adjustment of status fee of $1,010.

Making Registry effective once again would only require changing one date, e.g. January 1, 1972 to January 1, 2005, with the legislation perhaps providing for an automatic updating of the date every one or two years to ensure that it does not again become obsolete and that U.S.C.I.S. is not overwhelmed by the number of applicants and is able to process in an orderly fashion. Moving the date forward also has added political and tactical advantages in that it would not be major legislation since the law is already on the books. There need not be a huge hue and cry from every constituent group over the updating. Republicans should not oppose it in great numbers as the legislation was last updated by President Reagan himself.

Moving the date forward on Section 245(i) to a similar date with automatic updating and perhaps a removal of the physical presence requirement (which was not present in the first permutation of Section 245(i) which only required labor certification or immigrant visa petition filing by January 14, 1998) would also provide hope to the many undocumented immigrants in the country. Such a scheme would have the same advantages of Registry to the U.S.C.I.S. as envisioned above in ensuring that it is not overwhelmed and able to process applicants in an orderly fashion.

In terms of other benefits to U.S.C.I.S., moves forward with Registry or Section 245(i) would give the agency a large stream of revenue which might allow it to become more of a fee based agency. The agency currently has financial problems because of the sharp decline of applicants for many of its programs. Setting dates to automatically update would also limit the number of applicants during any one year, thus reducing the startup expenses required to meet the changes.

Comprehensive Immigration Reform (what little of it we have seen so far during the Obama administration), Registry, and Section 245(i) all commonly have a pathway to permanent residence. They should all be explored and significant progress should be made on one of the three in the next months before the election. Otherwise, Mr. Obama may find that the pro-immigrant leg of his base will be largely absent in November.

This article 2010 Alan Lee, Esq.

About The Author

Alan Lee, Esq. The author is a 30+ year practitioner of immigration law based in New York City. He was awarded the Sidney A. Levine prize for best legal writing at the Cleveland-Marshall College of Law in 1977 and has written extensively on immigration over the past years for the ethnic newspapers, World Journal, Sing Tao, Pakistan Calling, Muhasha and OCS. He has testified as an expert on immigration in civil court proceedings and was recognized by the Taiwan government in 1985 for his work protecting human rights. His article, "The Bush Temporary Worker Proposal and Comparative Pending Legislation: an Analysis" was Interpreter Releases' cover display article at the American Immigration Lawyers Association annual conference in 2004, and his victory in the Second Circuit Court of Appeals in a case of first impression nationwide, Firstland International v. INS, successfully challenged INS' policy of over 40 years of revoking approved immigrant visa petitions under a nebulous standard of proof. Its value as precedent, however, was short-lived as it was specifically targeted by the Administration in the Intelligence Reform Act of 2004.

The opinions expressed in this article do not necessarily reflect the opinion of ILW.COM.