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I.N.S. ISSUES REGULATIONS GOVERNING SECTION 245(i) -Part 1
by Michael J. Gurfinkel, Esq.
With less than one month to go before the April
30, 2001 deadline for availing of Section 245(i), the Immigration
and Naturalization Service has finally issued the regulations
governing eligibility for adjustment of status under Section 245(i)
of the Immigration and Nationality Act, as amended by the Legal
Immigration Family Equity Act (LIFE).
While the following material answers many of the
all important questions you may have about Section 245(i), INS
reminds the public to consult a reputable immigration attorney
for their individual situation. The INS said: "For more specific
information about your own particular situation, you should be
cautious to avoid unscrupulous immigration practitioners and
contact a licensed attorney or a legal service provider recognized
by the Board of Immigration Appeals."
The INS also provided its own questions and answers
regarding Section 245(i). Here are some of the more important
provisions of the INS regulations (which took effect on March
26, 2001), which are discussed in Question and Answer form, as
furnished (or answered) by the INS in its own words):
1. What is the Section 245(i) provision of the
Legal Immigration Family Equity Act (LIFE Act)?
Section 245(i) allows certain persons, who have
an immigrant visa immediately available but entered without inspection
or otherwise violated their status and thus are ineligible to
apply for adjustment of status in the United States, to apply
if they pay a $1,000 penalty. The LIFE Act temporarily extends
the ability to preserve eligibility for this provision of law
until April 30, 2001. Use of Section 245(i) adjustment of status
previously was limited to eligible individuals who were the beneficiary
of a visa petition or labor certification application filed on
or before January 14, 1998.
2. Who are the "certain persons"
covered under Section 245(i) adjustment of status? Those covered
by the provision are listed at Section 245(a) and (c) of the Immigration
and Nationality Act and include individuals who:
ù Entered the United States illegally
ù Worked in the United States illegally
ù Failed to maintain continuously lawful status
ù Entered under the Visa Waiver Pilot Program
ù Entered as foreign crewmen, and
ù Entered as foreign travelers in transit without
a visa.
3. Am I eligible for Section 245(i) adjustment
of status under the LIFE Act?
To be eligible, you must:
-
Be the beneficiary of a Form I-130 immigrant
visa petition ("Petition for Alien Relative"), or
Form I-140 immigrant visa petition ("Immigrant
Petition for Alien Worker"), or Form I-360 ["Petition
for an Amerasian Widow(er), or Special Immigrant], or Form
I-526 ("Petition for an Alien Entrepreneur")
filed with the INS on or before April 30, 2001, (either received
by INS or, if mailed, postmarked on or before April 30, 2001)
or
-
Be the beneficiary of an application for labor
certification filed with the Department of Labor (DOL) according
to DOL rules on or before April 30, 2001, and
-
Also have been physically present in the United
States on December 21, 2000, if the qualifying visa petition
or labor certification application was filed after January
14, 1998. All petitions and applications must be properly
filed and approvable when filed. (NOTE: There are some groups
that may not be affected by any deadlines related to
Section 245(i). The spouse or unmarried minor child of a U.S.
citizen or the parent of a U.S. citizen child at least 21
years of age if he/she was inspected and lawfully admitted
to the United States, but subsequently overstayed his/her
authorized admission or worked without permission, does
not need to apply for adjustment of status under Section 245(i).
Also, certain persons who are eligible for certain employment-based
immigrant visas and who were inspected and lawfully admitted
to the United States, but have not violated their status or
worked without permission for more than 180 days, do not have
to apply for adjustment of status under Section 245(i).)
4. What is the deadline for filing in order to
preserve eligibility for adjustment of status using Section 245(i)?
You have a very short window of opportunity, which
ends April 30, 2001, to preserve your eligibility to file
for adjustment of status under Section 245(i). You are not required
to file for adjustment of status (Form I-485) on or before April
30, 2001. However, to preserve your eligibility to apply
for adjustment using Section 245(i) you must:
Be the beneficiary of a Form I-130 immigrant visa
petition ("Petition for Alien Relative") or Form I-140
immigrant visa petition ("Immigrant Petition for Alien Worker")
filed with the INS on or before April 30, 2001, or
Be the beneficiary of an application for labor certification
filed with the DOL on or before April 30, 2001. All petitions
and applications must be properly filed and approvable when filed.
5. What does "properly filed" mean
for an immigrant visa petition?
Properly filed" for an immigrant visa petition
means that:
-
The immigrant visa petition was received by
INS prior to the close of business on or before April 30,
2001, or if mailed, was postmarked on or before April 30,
2001, and
-
The immigrant visa petition contains the names
of the petitioner and the beneficiary, the proper fee, and
the signature of the petitioner.
6. What does "approvable when filed"
mean for an immigrant visa petition?
"Approvable when filed" for an immigrant
visa petition means that:
-
It was filed properly;
-
It was meritorious in fact;
-
It was not fraudulent; and
-
At the time of filing, the beneficiary had the
appropriate family relationship or employment relationship
that would support the issuance of an immigrant visa.
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