Legislation Update: Congress Fails to Extend § 245(i) Adjustment, Passes Affidavit of Support Measure

IMMIGRATION LAW & POLICY

Affidavits of Support

legislation update: Congress fails to extend § 245(i) adjustment; passes affidavit of support measure
Immigrants' Rights Update, Vol. 16, No. 1, February 28, 2002

After months of debate and several near misses, attempts in Congress to pass a further extension of section 245(i) adjustment have failed yet again. However, Congress has passed a measure that would allow beneficiaries of approved visa petitions whose sponsors die to substitute another family member as an "alternative sponsor" for the purpose of satisfying the affidavit of support requirement.

Section 245(i) Adjustment. Section 245(i) adjustment is a provision within the Immigration and Nationality Act that since 1994 has allowed certain individuals who are otherwise eligible for immigrant visas, but who entered the U.S. without inspection or otherwise fell out of lawful status, to adjust to lawful permanent residence without having to travel to a U.S. consulate outside the country.

In May 2001, the House of Representatives passed a four-month extension of 245(i) adjustment, but with a restriction that previously had not been part of the provision—i.e., that the family or employment relationship upon which the visa application is based have existed on or before Apr. 30, 2001. The Senate also passed an extension, but its version did not contain the House version's new restriction. The House and Senate then worked out a compromise extension that passed the Senate in September 2001 and was supposed to be heard by the House on September 11—the day terrorists destroyed the World Trade Center in New York and attacked the Pentagon. The Bush administration then tried to get the extension included with the Commerce-Justice-State appropriations bill, but that bill never made it to a vote. Finally, Congressman James Sensenbrenner (R-WI), the Chair of the House Judiciary Committee, agreed to have the 245(i) extension included in the Enhanced Border Security and Visa Entry Reform Act of 2001 (H.R. 3525), but restrictionist Republicans led by Congressman Tom Tancredo (R-CO) succeeded in getting the extension stripped out of H.R. 3525, which passed the House but failed to pass the Senate.

Affidavit of Support. On a more positive note, however, on Dec. 20, 2001, the Senate did adopt the Family Sponsor Immigration Act of 2001 (H.R. 1892) by unanimous consent. Introduced by Congressman Ken Calvert (R-CA), the bill would amend the INA to allow family members other than the petitioner to sign an I-864 affidavit of support on behalf of a visa petition beneficiary when the petitioner dies while the beneficiary's immigrant visa application is pending. As the law stands now, if a petitioning relative dies before the principal beneficiary immigrates to the U.S., the visa petition approval is automatically revoked, unless the INS decides for humanitarian reasons not to revoke the petition.

However, this humanitarian exception does not waive the requirement that the "petitioner" have filed an affidavit of support on behalf of the beneficiary, and for this reason many beneficiaries have not been able to immigrate. H.R. 1892 would expand the definition of "sponsor" to include the visa applicant's spouse, parent, mother-in-law, father-in-law, sibling, child (if at least 18 years of age), son, daughter, son-in-law, daughter-in-law, grandparent, or grandchild, in cases where the petitioner died after the petition was approved and the INS has determined for humanitarian reasons not to revoke the petition. The Senate amended the bill to also add "brother" and "sister-in law" to this list of alternate sponsors, and the House passed the amended version on Feb. 27, 2002.