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FREQUENTLY ASKED QUESTIONS ABOUT SECTION 245(I)
PART 5
by Michael J. Gurfinkel, Esq.
On December 21, 2000, the Legal Immigration and
Family Equity Act (LIFE Act) was signed into law. The LIFE Act
included, among its provisions, an extension of Section 245(i)
until April 30, 2001.
Section 245(i) allows certain illegal aliens to
adjust status (be processed or interviewed for a greencard) in
the U.S., rather than going back to the U.S. Embassy for visa
processing, even though the alien may be out of status, TNT, worked
without INS authorization, crewmen who jumped ship, entered the
U.S. without inspection (snuck across the border), etc.
Although in many cases, Section 245 (i) does not
grant immediate legal status or work authorization, Section 245(i)
would preserve the alien's future ability to be
processed for their greencard in the U.S., once the family or
employer's petition is approved, AND their
priority date is current, even though that may be many years from
now.
In previous articles, I answered several of the
most frequently asked questions (FAQ's) about Section 245(i).
Here are some more FAQ's about Section 245(i).
- I heard that in order to be eligible
for Section 245(i), I need to pay a $1,000 penalty to the INS.
If I send a check or money order to the INS right now for $1,000,
can I get my work authorization?
The $1,000 penalty is to be paid only after a person's
family or employer's petition is approved and
the person's priority date is current. Only then can
a person file for adjustment of status (be interviewed for a
greencard in the U.S.). The $1,000 "penalty" that
an alien pays to the INS is in order to enable an illegal alien
to eventually be "forgiven" by the INS for having
been out of status, worked without authorization, jumped ship,
entered without inspection (snuck across the border), etc. If
a person files for adjustment of status (or sends the money
in to the INS) any sooner, the INS will reject the adjustment
of status package.
- My employer petitioned me for an
H-1B visa. Am I "grandfathered" under Section 245(i)
based on my employer's H-1B petition?
An H-1B is a temporary nonimmigrant visa. In order for
an alien to be "grandfathered" (preserve his Section
245(i) based on an employer's petition), the employer must properly
file a Labor Certification Application on behalf of the
alien for a permanent greencard. An H-1B visa will NOT
grandfather an alien, because it does not result in a permanent
greencard. Therefore, if you are under petition by the employer
for an H-1B visa, you need to have the employer file a Labor
Certification Application on your behalf before the April 30,
2001 deadline.
- I was petitioned by my employer for a greencard
through Labor Certification. However, my employer is now experiencing
financial difficulties. What happens to my Section 245(i) eligibility
if my employer goes out of business?
According to INS, as long as the Labor Certification was
"properly filed" (meaning that, at the time it was
filed, it met the legal and regulatory requirements, and was
not "fraudulent or without any basis in law or fact",
i.e. (it cannot be a "fixed" or made up job, etc.),
then you would continue to preserve your Section 245(i) eligibility,
even if your employer should later go out of business, pull
or withdraw your case, etc. Then, if you should find another
employer who would petition you (even after the April
30, 2001 deadline), you would still be eligible to adjust status
in the U.S. under Section 245(i) by "transferring"
your Section 245(i) from the old employer's case, onto the new
employer's case. In other words, by beating the deadline with
any properly filed family petition or Labor Certification
Application, you preserve Section 245(i) eligibility, and you
can use your Section 245(i) eligibility either on that case,
or on any new or different case, even if that new or different
case is filed after the deadline.
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