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BE SURE TO PROVE YOUR "PHYSICALLY PRESENCE"
IN U.S. ON DECEMBER 21, 2000, FOR SECTION 245(i)
by Michael J. Gurfinkel, Esq.
Section 245(i) is a law which allows certain persons
to eventually adjust status (be interviewed for their greencard)
in the U.S., even if they are out of status, worked without authorization,
jumped ship, snuck across the border, etc.
To be "grandfathered" or preserve a person's
Section 245(i) eligibility, the following basic requirements must
be met:
- The person must have a family petition or Labor
Certification Application "properly filed" on or before
April 30, 2001;
- The person must prove to the INS that he was
"physically present" in the U.S. on December
21, 2000.
- Note: For persons who had a family petition or
Labor Certification Application filed on or before January
14, 1998, there is no requirement that the person
be "physically present" in the U.S. on December 21,
2000. It is only for people who have family petitions or Labor
Certification Applications filed on their behalf between January
15, 1998 and April 30, 2001, that the person be "physically
present" in the U.S. on December 21, 2000.
Recently, I had a jumpship who came to my office,
who had an employer who was willing to petition him for Labor
Certification, in order that he could be "grandfathered"
under Section 245(i). However, he arrived in the United States
on January 5, 2001. Therefore, he was not
"physically present" in the United States on December
21, 2000. Even though he had an employer willing to petition him,
he would not be eligible for the benefits under Section 245(i).
How does a person prove that he was "physically
present" in the U.S. on December 21, 2000?
On January 26, 2001, the INS issued a memorandum, setting forth
the type of evidence needed to eventually show to the INS, to
prove that the person was "physically present" in the
U.S. on December 21, 2000. According to the INS' recent memo,
"an alien may demonstrate physical presence by submitting
a photocopy of a Federal, State or Local Government-issued document
that demonstrates the alien's physical presence in the United
States on December 21, 2000". These documents could include
your I-94 (Arrival/Departure Record), driver's license, or any
other type of document issued by a Federal, State, or Local governmental
agency, which would be on that governmental agency's stationery,
showing your name and address on the documents and be dated on
or about December 21, 2000.
The INS memo further states that if the alien does
not have a government-issued document demonstrating his or her
physical presence in the United States on December 21, 2000, the
INS should accept and evaluate non-government issued documents.
"Such documentation must bear the name of the applicant,
and have been dated at the time it was issued, and bear the seal
or signature of the issuing authority (if the documentation is
normally signed or sealed), be issued on letterhead stationery,
or be otherwise authenticated". Non-government documents
might be from banks, credit card companies, or other non-governmental
agencies. The documents should have your name, be dated, and be
on the entity's letterhead, so that the document can be authenticated.
According to the INS, in some cases, a single
document may suffice to establish the alien's physical presence
in the United States on December 21, 2000. However, INS anticipates
that an alien will ordinarily need to submit several different
types of documents to prove the physical presence requirement,
such as "bank records that an applicant made a mortgage payment
near or about December 21, 2000, such as making a mortgage payment
on December 1, 2000, and again on January 1, 2001, would be acceptable".
The INS further noted "the Service [INS] may not accept a
personal affidavit of physical presence on December 21, 2000,
without an interview or other additional secondary information
that validates the affidavit".
In addition, I believe that the old "amnesty"
regulations for Section 245A may also provide guidance on proving
"physical presence" under Section 245(i). (Under Section
245A, a person was required to prove that he or she was "physically
present" in the U.S. before January 1, 1982. The INS came
up with regulations detailing the type of documentation to prove
physical presence under that law. Perhaps when INS comes up with
regulations for Section 245(i), INS will use the same type of
evidence.)
As you can see, establishing "physical presence"
in the U.S. on December 21, 2000, is critical in connection with
a person establishing eligibility under the amended version
of Section 245(i) (for those people filing family petitions
or Labor Certifications between January 15, 1998 and April 30,
2001). Since it has only been a few weeks since December 21, 2000,
you should still have most of these types of documents in your
possession. Now is the time to gather and save them, so that you
have this evidence ready when the time finally comes for you to
"prove" that you were "physically present"
in the U.S. on December 21, 2000. If you wait too long to gather
these documents, you may run the risk of throwing them out by
accident, etc.
Accordingly, when you go to an attorney in connection
with beating the April 30, 2001 deadline, it is also important
that you gather documents showing your "physical presence"
in the U.S. on December 21, 2000. The attorney should be knowledgeable
in being able to package and present your case to INS, showing
your eligibility for a greencard, and proving your "physical
presence" in the U.S.
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