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SECTION 245(i) REACTIVATED UNTIL APRIL 30,
2001
by Michael J. Gurfinkel, Esq.
Aliens who have overstayed, worked without authorization,
jumped ship, snuck across the border, etc. have been given a new
chance to adjust status in the U.S. This is because Congress has
recently revived Section 245(i) - but only until April
30, 2001.
This is a wonderful Christmas gift to all the illegal
aliens who missed outon Section 245(i) when it originally expired
on January 14, 1998.
The measure, known as the Legal Immigration and
Family Equity Act (LIFE), extends Section 245(i) until April 30,
2001. Under this law, aliens would be eligible to adjust status
(be processed for their greencards in the United States), under
Section 245(i) as long as they are "physically present"
in the U.S. when the LIFE Act is signed by the President (which
is expected within days), and have a family-based petition or
labor certification application filed on their behalf between
January 14, 1998 and April 30, 2001.
As many people are aware, Section 245(i) expired
on January 14, 1998. Many people missed the opportunity to avail
of that law. The LIFE Act may be the last extension, and your
last chance, to get a green card in the U.S., without going back
to your home country.
What Is Section 245(i)?
Section 245(i) allowed aliens who are out of status,
worked without authorization, jumped ship, snuck across the border,
etc. to be eligible to be processed and interviewed for green
cards in the United States (as opposed to going back to their
home country), provided they had a family petition or labor certification
application filed on or before January 14, 1998. If the petition
or labor certification was filed on or before January 14, 1998,
the person was considered "grandfathered", and could
later adjust status, once the petition was approved by
INS, the priority date was current, and they pay $1,000
penalty per person over 17 years of age.
After 245(i) expired on January 14, 1998, people
who did not avail of that law were supposed to go back to be interviewed
at the U.S. Embassy or Consulate in their home country, to get
their visas approved. However, if they go home for consular processing,
they could be subject to another law, which bars their re-entry
to the U.S. for 3 or 10 years.
What Happens To People Who Do Not Have Approved
Petitions and/or Current Priority Dates?
INS issued several memos clarifying what it means
to be "grandfathered", stating that the mere filing
of a family petition or labor certification before Section
245(i) expires could preserve a person's eligibility to later
file for Section 245(i) adjustment of status -- even if the beneficiary
does not become eligible to file for adjustment until many years
in the future (due to the current unavailability of a visa number).
According to INS, "The filing of a visa petition
or a request for labor certification may preserve an individual's
eligibility to file for adjustment of status in the future".
In other words, even though you may not be presently
eligible to file your adjustment of status to avail of 245(i)
(because either you have no approved petition AND/OR your priority
date is not current), as long as you have a family petition or
labor certification application filed on your behalf before
April 30, 2001, then you can later be eligible for adjustment
of status, even if your priority date does not become current
until several years from now.
In addition, once a person is "grandfathered",
they could thereafter transfer their Section 245(i) eligibility
from a petition that was filed before Section 245(i) expired
onto a new, faster petition filed after Section 245(i)
expired. For example, suppose a person has a U.S. citizen parent
or sister. As long as their family member files a petition for
them before April 30, 2001, the alien would be "grandfathered"
under Section 245(i). But we all know that such a family petition
could take 15-20 years. However, if, after April 30, 2001, the
alien finds a faster way to get a green card, such as under Labor
Certification, they could "transfer" the Section 245(i)
eligibility from their family petition (which was filed before
the deadline) onto a new or different petition filed after the
deadline. So, it is important that if you are, in any way, eligible
to avail of Section 245(i), that you have a family petition or
Labor Certification application filed for you before April 30,
2001, in order to be "grandfathered".
Make sure that you seek the assistance of a
reputable attorney, who will ensure that you are eligible under
Section 245(i) and that your papers are properly filed so you
won't miss the filing deadline. REMEMBER, if documents you have
submitted on your own are NOT complete, INS may return your documents
and you might miss the deadline for filing!!!
The LIFE Act also contains provisions which: (1)
grant special "V' visas to spouses and minor children of
immigrants (F-2A), whose petitions have been pending for at least
three years, to either enter or remain in the U.S. and obtain
work authorization while waiting for their priority date to becomecurrent;
and (2) expands the "K" (fianceŻ) visa, to allow spouses
of U.S. citizens to enter the U.S. These provisions of the LIFE
Act will be the subject of a future article.
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