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FREQUENTLY ASKED QUESTIONS ("FAQ'S") ABOUT SECTION 245(i)
- Part 1
by Michael J. Gurfinkel, Esq.
On December 21, 2000, the President
signed into law the Legal Immigration and Family Equity Act (LIFE
Act), which included, among its provisions, an extension of Section
245(i) until April 30, 2001. Here are some frequently asked
questions (FAQ's) about Section 245(i):
- What is Section 245(i)?
Section 245(i) is a law that allows certain aliens to adjust
status (be processed for a green card) in the U.S., even though
they may be out of status, TNT, worked without INS authorization,
crewman who jumped ship, entered the U.S. without inspection
(snuck across the border), etc.
Before Section 245(i) came into effect, most of these people
were ineligible to adjust status in the U.S., and had to go
back to their home country to be processed at the Embassy for
their immigrant visa.
- Who could be eligible for benefits under
Section 245(i)?
People who could be eligible for adjustment of status under
Section 245(i) would include those people who were "physically
present" in the U.S. on December 21, 2000 (the date
President Clinton signed the law), and have either a family
petition or Labor Certification Application properly
filed on their behalf before April 30, 2001.
In such a case, they could have "grandfathered" their
Section 245(i) eligibility. (Once their petition is eventually
approved, and their priority date is current,
they would then be eligible to file for adjustment of status,
by paying $1,000 per person over 17 years of age, even if it
is many years after the family petition or Labor Certification
was filed.)
- What type of family petition could qualify
a person to be "grandfathered" under Section 245(i)?
If you fall into any of the following family-based categories,
you could be eligible to be "grandfathered" under
Section 245(i):
FAMILY MEMBERS OF U.S. CITIZENS
* Spouse
* Parents
* Minor (under 21) children
* Adult (over 21) children, whether married or unmarried
* Brothers and sisters
FAMILY MEMBERS OF IMMIGRANTS (GREEN CARD HOLDERS)
* Spouse
* Minor (over 21) unmarried children
* Adult (over 21) unmarried children
- How can a person be "grandfathered"
through Labor Certification?
A person could be "grandfathered" for Section 245(i)
eligibility through Labor Certification by having an employer
file a properly completed Labor Certification Application (ETA-750)
on the alien's behalf with the State Employment Security Agency
(such as EDD) before April 30, 2001.
- Does the family petition or Labor Certification
Application have to be approved in order for a person to be
"grandfathered" under Section 245(i)?
No. According to the INS, the mere "filing
of a family petition or a request for Labor Certification may
preserve an individual's eligibility to file for adjustment
of status in the future," provided it was "approvable
at the time of filing".
- Does the INS use visa petitions to find
illegal aliens and deport them?
The INS was asked this question, and the INS' response was:
"Generally, no, but there are certain circumstances
where that might be done -- for example, when the individual
is already subject to a deportation order, has committed fraud,
or has been convicted of crimes constituting a basis for deportation."
The general rule is that the INS will not use these petitions
or Labor Certification Applications to find and deport you.
It is only in those cases where a person has already been ordered
deported, or has committed a crime, that the INS may go after
you. In most cases, the advantages of filing far
outweigh the potential disadvantages.
The INS Commissioner had also issued a Memorandum (or Directive)
to the INS about "prosecutorial discretion", where
the Commissioner indicated that, because of limited resources
and staffing, the INS should really pick and choose the types
of cases that they will go after to deport people.
- Does the filing of a family petition or
Labor Certification Application put a person in immediate "legal
status", or protect them from deportation or other INS
enforcement action?
A person who is unlawfully in the U.S. could still be subject
to removal/deportation, even if they have a family petition
or Labor Certification Application filed for them (unless they
are an immediate relative of a U.S. citizen, in which case they
would be immediately eligible for adjustment of status).
The mere filing of a family petition or Labor Certification
Application does not create the "right" to remain
or to work in the U.S., but it preserves (or "grandfathers")
your eligibility to later adjust status, once your petition
is approved, your priority date is current, and
you pay a $1,000 "penalty" per person over 17 years
of age.
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