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FREQUENTLY ASKED QUESTIONS ("FAQ'S") ABOUT SECTION 245(i)
- Part 2
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.
Section 256 (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, crewmen 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. Section 245(i) originally expired on
January 14, 1998, but was recently extended again until April
30, 2001.
In my previous article, I answered several of the
most frequently asked questions (FAQ's) about Section 245(i).
Here are some more FAQ's:
- If I have a family petition or Labor Certification
Application filed on my behalf before April 30, 2001, can I
get an immediate work authorization?
Only "immediate relatives" of U.S. citizens (spouse,
parent, or minor child), are "immediately" eligible
for green cards. So, they can immediately apply for work authorization.
Other family petitions and Labor Certification must wait for
the case to be approved and the priority date to be current
before they could apply for work authorization or adjustment
of status.
- What happens if I don't bother to have
a family petition or Labor Certification Application filed on
my behalf before April 30, 2001?
If you do not take advantage of this law (by having a family
petition or Labor Certification Application filed on your behalf),
you may not later be eligible to adjust status in the U.S. Instead,
you would be required to back to the U.S. Embassy for immigrant
visa processing. However, there is a different law that states
that if a person has been out of status for over six months,
once they depart the U.S., they could be barred from returning
to the U.S. for 3 or 10 years. Therefore, it may be to your
advantage (and well being) to avail of this law before it expires.
- I thought that Section 245 (i) expired
on January 14, 1998?
Section 245(i) had expired on January 14, 1998, and many people
missed out on the opportunity to avail of that law. However,
because of intensive lobbying and pressure from pro-immigration
groups, Congress agreed to revive and extend Section 245(i)
up until April 30, 2001. If you missed out the first time
on Section 245(ii) (because you passed the deadline or you were
not in the United States then), now is the time to take advantage
of the recently revised Section 245(i).
- I am a crewman who jumped ship. I recently
married my wife, who is a U.S. citizen. Would Section 245(i)
help me?
Yes. Without Section 245(i), crewmen are not eligible to adjust
status in the U.S., even if they marry a U.S. citizen. Now,
with Section 245(i) being revived, crewmen (or jumpships) could
be eligible to adjust status in the United States, provided
that they have a family petition (or even a Labor Certification
Application) filed on their behalf before April 30, 2001, and
they were "physically present" in the U.S. on December
21, 2000. Therefore, you should definitely get your wife to
petition you.
- I snuck across the border, and was never
inspected by an immigration officer at a port of entry. I have
an employer who is willing to petition me. Would Section 245(i)
help me in my situation?
Yes. Without Section 245(i), aliens who entered the United States
without inspection (snuck across the border) are not eligible
to adjust status in the United States. Section 245(i) exempts
these people from the requirements of returning to their home
country, and permits them to adjust status in the United States,
even though they had entered the U.S. without inspection, provided
that they had a family petition or Labor Certification Application
filed on their behalf before April 30, 2001. Once the petition
is approved and the priority date is current,
they can apply for adjustment of status.
- I entered the U.S. but lost my passport
and the record of my arrival/departure (I-94). Would Section
245(i) help me in my situation?
Yes. If you are out of status, Section 245(i) would help you
in preserving your eligibility to be interviewed in the United
States. When a person files for adjustment of status, the INS
looks for proof of your lawful entry to the U.S., to make sure
that you were inspected by an INS officer at the border or at
the airport. If you don't have proof of your lawful entry (i.e.
I-94, which is the white arrival/departure card stapled to your
passport), the INS may conclude that you entered the U.S. without
inspection. Although you can request the INS for a replacement
I-94, you should still have an "insurance policy"
by filing a family petition or Labor Certification Application
before April 30, 2001. Section 245(i) allows adjustment of status
even for people who entered the U.S. without inspection.
Therefore, if you don't have the proof of your inspection, you
could still be eligible to adjust status in the U.S. If you
are out of status, it is all the more reason to avail of Section
245(i).
- I am a jumpship, and am married to
an immigrant. Since my wife will be eligible for U.S. citizenship
in about two years, shouldn't I wait
for her to become a citizen before she petitions me, because
it will be a lot faster?
Before Section 245(i), crewman (or jumpships) were not eligible
to adjust status in the U.S., even if they were married to,
and petitioned by, a U.S. citizen. Section 245(i) allows jumpships
to adjust status in the U.S., as long as a family petition or
Labor Certification is filed before April 30, 2001. If
you wait for your wife to become a U.S. citizen in order to
petition you, it will be beyond the April 30, 2001 deadline.
In that case, you would not have preserved your Section
245(i) eligibility. Instead, your wife should file a petition
for you now, as the spouse of an immigrant (F-2A). Once
she becomes a U.S. citizen, you can always "upgrade"
the petition. This way, you would have "preserved"
your Section 245(i) eligibility by having the petition filed
before April 30, 2001.
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