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I.N.S. ISSUES REGULATIONS
GOVERNING SECTION 245(i) ² PART 2
by Michael J. Gurfinkel, Esq.
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).
They also provided questions and answers about 245(i).
In a previous article, we listed some of the provisions
of the INS regulations, as well as questions and answers from
INS.
While the following material answers 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."
Here are some more important provisions of the INS
regulations, which took effect on March 26, 2001), discussed in
Question and Answer form, as furnished by the INS in its own
words:
7. What does "properly filed"
mean for an application for labor certification?
"Properly filed" for an application for labor certification
means that it was filed with the DOL on or before April 30, 2001,
according to DOL rules.
8. What does "approvable when filed"
mean for an application for labor certification? "Approvable
when filed" for an application for labor certification means
that when the labor certification was filed with the DOL:
9. When do I submit my application for
using Section 245(i) adjustment of status?
You will be able to submit your application for adjustment
of status under Section 245(i) at any later time when your immigrant
petition is approved and a visa number is immediately available
for you in accordance with the State Department's monthly Visa
Bulletin.
10. Does everyone who files for adjustment
of status using Section 245(i) have to pay the $1,000 penalty
fee?
The only applicants using Section 245(i) who do not have to
pay the $1,000 penalty fee are those who, at the time they file
their application for adjustment of status (Form I-485) under
Section 245(i), are:
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Unmarried and less than 17 years of age, or
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All other applicants for adjustment of status
(Form I-485) under Section 245(i) must pay the $1,000
penalty fee.
11. Why do I have to prove that I was
physically present in the United States on December 21, 2000?
The law states that if you are the beneficiary of a visa petition
or labor certification application that was filed after January
14, 1998, and on or before April 30, 2001, in order to be eligible
for adjustment of status under Section 245(i) you also had to
be physically present in the United States on the date the LIFE
Act was enacted- December 21, 2000.
12. Do dependent family members also need
to prove that they were physically present in the United States
on December 21, 2000?
No. The dependent spouse or children of the principal beneficiary
do not need to prove that they were physically present in the
United States on December 21, 2000. Only the principal beneficiary
of the immigrant visa petition filed after January 14, 1998, and
on or before April 30, 2001, is required to meet the physical
presence requirement.
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