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Compromise Reached on 245(i)

Posted on September 7, 2001

While we all think that Section 245(i) should have been permanently restored, rather than just extended, we were concerned that the extension measures that the Senate Judiciary Committee and the House passed were deeply flawed due to a new requirement that the familial or employment relationship that is the basis for the petition or application needed to have existed on or before April 30 (House version) or date of enactment (Senate version). Furthermore, this requirement was to have been applied retroactively to filings made after January 14, 1998. We believed that no new requirement was warranted.

There is some good news to report on ameliorating the new requirement. It was changed in the compromise to delete any reference to "employment relationship," and the new requirement is not retroactively applied. Also, the House agreed to an August 15, 2001 date (instead of the April 30 date). The Senate bill now states that those who file after April 30, 2001 must demonstrate that the "familial relationship existed before August 15, 2001, or the application for labor certification that is the basis of such petition for classification was filed before August 15, 2001." (August 15 was the compromise date agreed upon.)

Unfortunately, the compromise bill made no changes on the family-based requirement definition, the relationship mandated in the underlying requirement needs to have existed by August 15, 2001, and the 245(i) extension for labor certification application-based cases is effectively already past.

While the language is a bit unclear on the length of the overall extension, Senate staffers report that the extension will sunset four months after the regulations are issued. Reading the text of the bill, however, suggests that the extension will end April 30, 2002. We will clarify the length of the extension as soon as possible.

Senators Kennedy and Daschle and their staff, Esther Olavarria and Andrea LaRue, deserve our thanks for their leadership and work on this extension.
 
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