Can my husband pay a penalty fee to get a green card?

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Question:

I am a U.S. citizen, but my husband is here illegally. We were always told that if he wanted to apply for a green card, he'd have to leave the United States and then he wouldn't be let back in for many years. I heard something about a law that passed in the last days of Clinton's administration, allowing illegal immigrants to pay a penalty fee and apply for their green card in the United States. Does this law help us?

Answer:

You basically heard right. In 2001, Congress passed what were named the "LIFE" amendments, which brought back to life, for a short time, a section of the immigration law known as "Section 245(i)." Section 245(i) permitted any immigrant, no matter how he'd entered the United States or what other immigration violations he'd committed, to pay a penalty fee and apply for his green card while inside the United States.

It's important to realize that Section 245(i) wasn't a free pass to a green card -- applicants still had to be eligible on some existing grounds, such as marriage to a U.S. citizen. But it made the application processing much smoother, as described below.

To use Section 245(i) based on the LIFE amendments, the immigrant must have been physically present in the United States on the date they were signed, December 21, 2000. The immigrant must also have had a valid visa petition submitted on his or her behalf by April 30, 2001 (and that petition must ultimately have been approved by the INS, whose name has since changed to U.S. Citizenship & Immigration Services (USCIS)). The penalty fee for qualifying adults was $1,000.

This was a huge benefit: Before Section 245(i), most immigrants living in the United States (in particular those who had crossed the border illegally) had to leave the country and apply for their green card outside the United States at one of its overseas consulates -- a process that was expensive and took many months.

Not only that, but after doing away with Section 245(i), Congress created a neat little trap for immigrants -- anyone who left the United States to apply for their green card would now face penalties for time that they had lived illegally in the United States. Six months spent here illegally would bar you from returning to the United States for three years; a year spent here illegally would bar your return for ten years. The only way around this was to apply for a waiver, based on extreme hardship to the immigrant's qualifying U.S. relatives. Needless to say, your husband and many other would-be green card applicants decided they were better off trying to live here illegally. (There is, however, recent good news on this score -- instead of waiting until they've overseas to apply for a waiver, applicants can apply while they're in the U.S., as described in "Who Is Eligible for Provisional Waiver of Three- or Ten-Year Time Bar."

But back to the core of your question. There are now only a few people who can take advantage of 245(i) -- basically those few who already had a visa petition filed for them during one of the periods while the law was still in effect. Everyone else has to hope that the law will change once again! This topic is complicated, so see Nolo's Fiancé and Marriage Visas or consult an immigration attorney for more information on how it applies to you.

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