pp. 10-11 in Immigration Review no. 29, Summer 1997
An analysis recently completed by the Congressional Research Service estimates that roughly one-fourth of the 915,900 legal immigrants admitted in FY-1996 were living illegally in the United States prior to obtaining a green card. Significant percentages of nearly every category of admission — family members, skilled and unskilled employment immigrants. and diversity (lottery) immigrants — were illegal immigrants before gaining permanent residence (See Table 1). These estimates were derived by analyzing INS data on how the year's immigrants originally entered the country.
A period of illegal residence does not now disqualify an otherwise eligible applicant for permanent residence In fact. in 1994 Congress passed a measure offering illegally resident applicants the opportunity to undergo processing, or adjust status, in the United States for an additional fee (now $1,000). rather than requiring them to apply in their home country, as the majority of immigrant visa applicants do. This controversial provision of the law, known as Section 245(i), was scheduled to sunset on September 30, 1997. However, Congress is currently considering proposals to extend it or make it permanent.
Nearly half of all those legal immigrants admitted in 1996 as the spouse of a U.S. citizen adjusted status under 245(i). along with over 40 percent of the spouses of permanent residents. Large proportions of two employment categories — the category for less-distinguished professionals and unskilled workers (Employment 3rd) and the category used mainly by religious workers (Employment 4th) — adjusted from illegal residence.
In general, immigrants from countries in Latin America have the highest rates of adjusting from illegal residence. Asian immigrants tend to be admitted from abroad (See Table 2).
Some defenders of 245(i), notably the immigration bar and other immigrant advocates, maintain that allowing illegal aliens to adjust status is the humane thing to do, since the immigrant visa waiting list, now nearly four million strong, keeps families from being together legally. Yet more than half (53%) of those who adjusted under 245(i) were admitted in categories that do not have a waiting list at all; significant waits apply only to those entering under the family preference and unskilled worker categories, not to immediate family members of U.S. citizens or the distinguished professional immigrants.
The State Department has lobbied hard for 245(i) to be extended because it shifted responsibility for processing these immigrant visas over to the INS and enabled State to cut positions in consulates overseas. The INS sees dollar bills too: the $1,000 fee paid by 245(i) adjusters could mean between $100 and $200 million in extra annual revenue. As some have pointed out, this puts the INS in the curious position of benefitting financially from failing in its mission to stop illegal immigration.
Congress' move to preserve 245(i) would seem to run counter to the spirit of the immigration reform law enacted last year with overwhelming support. For one thing, if 245(i) were allowed to sunset, it would put some teeth into the new three year/ten year bar on visas to former illegal aliens, by discouraging those who aspire to permanent residence from prematurely and illegally coming to live in the United States. By failing to close a major loophole in the legal immigration process, Congress will effectively cede all control over the flow of legal immigration to the immigrants themselves.
Table 1
Estimated Aliens Adjusting to Immigrant Status Under Section 245(i): Fiscal Year 1996
Visa category |
|
adjusters |
category |
Spouses of U.S. Citizens |
80,972
|
|
|
Spouses & Children of Permanent Residents |
75,583
|
|
|
Skilled & Unskilled Workers |
24,190
|
|
|
Children of U.S. Citizens |
15,523
|
|
|
Parents of U.S. Citizens |
11,620
|
|
|
Diversity [Lottery] |
6,873
|
|
|
Unmarried Sons & Daughters of U.S. Citizens |
4,528
|
|
|
Religious Workers, Others |
2,654
|
|
|
Siblings of U.S. Citizens |
2,546
|
|
|
Most Distinguished Professionals |
2,030
|
|
|
Married Sons & Daughters of U.S. Citizens |
1,677
|
|
|
Exceptional Professionals |
1,428
|
|
|
Legalization Dependants |
172
|
|
|
Investors |
98
|
|
|
Other |
41
|
|
|
TOTAL |
229,935
|
|
|
Major Immigrant Visa Countries with the Highest and Lowest
Proportion of Potential 245(i) Adjustments, 1995-1996
Highest | Percent |
1. Nicaragua | 63 |
2. Guatemala | 59 |
3. Mexico | 58 |
4. El Salvador | 56 |
5. Trinidad & Tobago | 50 |
6. Barbados | 41 |
7. Peru | 39 |
8. United Kingdom | 39 |
Lowest | |
1. China | 8 |
2. Hong Kong | 9 |
3. Syria | 9 |
4. Philippines | 10 |
Worldwide Average | 31 |
source: Congressional Research Service