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FREQUENTLY ASKED QUESTIONS ("FAQ'S") ABOUT SECTION 245(i)
- Part 3
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 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, 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.
If you are in the U.S., this law may be of
tremendous benefit to you. If you are outside the U.S.,
but have friends or relatives in the U.S., you may want
to tell them about this new law before the deadline.
In my previous articles, I answered several of the
most frequently asked questions (FAQ's) about Section 245(i).
Here are some more FAQ's:
15. I am a college graduate,
but am now working as a caregiver.I don't have any family members
who could petition me, and I don't think that I can find an
employer for a skilled or professional position before the April
30, 2001 deadline. What can I do to avail of Section 245(i)
before the April 30, 2001 deadline?
If your present job is real (versus "fixed"
or "fake"), your present employer could petition you
before April 30, 2001, even though it's an "unskilled job",
such as a caregiver. Then, you would "preserve" your
eligibility under Section 245(i). If you later find an employer
who would petition you in a skilled or professional job (where
the processing time is a lot faster), the new employer could
sponsor you, and you would be able to "transfer" your
Section 245(i) eligibility onto the second employer's case,
to enable you to later adjust status on that "faster"
Labor Certification. (INS allows you to transfer your Section
245(i) eligibility onto a new or different petition or Labor
Certification Application, which could be filed after the deadline,
as long as you had any properly filed family petition or Labor
Certification Application filed on your behalf before the April
30, 2001 deadline.)
16. I have a sister who is a U.S.
citizen. If she petitions me, it could take 20 or more years
before I would be eligible to adjust status under her petition.
Is there any advantage to having her file her petition for me
before the April 30, 2001 deadline?
Yes. By having your sister file her petition before
the April 30, 2001 deadline, you would have "preserved"
your Section 245(i) eligibility (or would be "grandfathered"
under Section 245(i)). Once you are "grandfathered"
under any kind of properly filed family-based petition or Labor
Certification Application, you could thereafter find a faster
way to obtain a green card (such as through Labor Certification)
and transfer your Section 245(i) eligibility from your sister's
petition (which was filed before the April 30, 2001 deadline)
onto the faster petition (which may have been after the deadline
expired). Remember, as long as you had any properly filed family
petition or Labor Certification Application filed on your behalf
before the April 30, 2001 deadline, you are "grandfathered",
and you have preserved your Section 245(i) eligibility forever.
17. Why is it important to hire an
attorney to avail of Section 245(i)?
Section 245(i) requires that your family petition or
Labor Certification be timely filed, properly filed,
and "approvable when filed". If you mess up
on any of these items, you could miss the deadline, and not
be able to avail of Section 245(i). Why risk missing the deadline
and be sent back to your home country for visa processing, when
you can be interviewed in the U.S.?
18. What does it mean that the case must
have been "approvable at the time of filing"?
In order for a family petition or Labor Certification Application
to be "approvable at the time of filing" for purposes
of grandfathering, the family petition or Labor Certification
Application must meet all applicable legal requirements for
filing. Cases that are deficient because they were submitted
without fee, or because they were fraudulent or without any
legal basis in law or fact, would not be considered "approvable
at the time of filing", and would not be considered to
have "grandfathered" the alien. For example, if you
had a cousin file a family petition on your behalf, that
would not be "approvable at the time of filing",
because a cousin cannot petition another cousin. If a husband
petitions his wife, but she is still married to another man,
this also may not be "approvable at the time of filing",
as the second marriage would have been bigamous and void. Or,
if a person is being petition in a college-level job, but used
a fake diploma, this may also not be "approvable at the
time of filing", because the alien would not have been
qualified for the job, and it would involve fraud.
That is why it is important to have an experienced attorney
assist you in connection with reviewing the case, making sure
it is timely and properly filed, as well as "approvable
at the time of filing". Remember, the case does not have
to actually be approved prior to the deadline. The law
requires only that at the time it was filed, it could have
been approved, because it had met all the legal and factual
requirements as of the time it was filed.
19. What happens if a family petition or
Labor Certification is filed on my behalf, but the petitioner
later dies or goes out of business. Would I still
be grandfathered?
As long as the case was properly filed and "approvable
when filed", the alien would still be grandfathered, even
if the case was later denied, revoked, withdrawn by the petitioner,
or the petitioner goes out of business, dies, etc. The key is
that, at the time of filing, it was "approvable"
when filed.
20. I don't have an employer, but
my wife has an employer who is willing to petition her. Will
I also be covered under Section 245(i) if my wife's employer
petitions her?
Yes. Not only is the person who was directly petitioned
(Principal Beneficiary) grandfathered under Section 245(i),
but also that alien's spouse and children under 21 years of
age (Derivative Beneficiaries). Therefore, if your wife's employer
files a petition for her before the April 30, 2001 deadline,
you (and any of your children under 21 years of age) would also
be grandfathered. Once a derivative beneficiary (spouse or minor
child) is grandfathered, they would continue to be eligible
to adjust status under Section 245(i), along with the principal
alien. Or, they could even adjust status on their own, through
a new or different petition. For example, if your child turns
21 years of age and ages out, and she later finds an employer
to petition her, she can transfer her Section 245(i) eligibility.
Derivative beneficiaries still remain grandfathered under Section
245(i), even if they find a new or different way to adjust status
after the deadline, such as being petitioned by their own employer,
marrying, etc.
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