Seventeen Years Since the Sunset: The Expiration of 245(i) and Its Effect on U.S. Citizens Married to Undocumented Immigrants

One of the most pervasive myths of U.S. immigration law is that marriage to a U.S. citizen confers citizenship, or at least some form of legal status, upon a foreign national. It is an intuitive notion: that a U.S. citizen enjoys, as part of his or her package of privileges and protections, the right to live anywhere in the United States with a spouse of his or her choosing, and to confer automatically some form of legal status upon that spouse. It comes as a surprise and an affront to many U.S. citizens that their immigration laws do not always comport with this notion. The fact is that no marriage-based adjustment of a foreign national’s immigration status occurs automatically. And significant problems arise for families in which the foreign national spouse entered the United States without inspection. Under current immigration law, foreign nationals who entered the United States without inspection are ineligible to apply for lawful permanent residency in the United States, irrespective of the existence of an approved petition submitted by a U.S. citizen spouse. Such individuals must instead depart the United States and apply for an immigrant visa abroad. This is much more than an inconvenience involving travel and temporary separation from loved ones. Another immigration provision bars any foreign national who has been unlawfully present in the United States for one year or longer from reentering the United States for ten years upon his or her departure from the United States. Only a waiver granted on account of “extreme hardship” to the U.S. citizen spouse can overcome the bar. This Article reviews and critiques the reentry bars and advocates for the resurrection of section 245(i) of the Immigration and Nationality Act, which, prior to its expiration in 1998, allowed undocumented immigrants who married U.S. citizens to adjust their status in the United States rather than have to depart the United States and apply for an immigrant visa abroad. The Article argues that the combined effects of the reentry bars and the unavailability of 245(i) upon the current generation of U.S. citizens seeking to sponsor undocumented immigrant spouses are overly harsh and constitutionally suspect. The Article concludes that truly comprehensive immigration reform legislation must include a permanent reinstatement of 245(i) for immediate relatives of U.S. citizens