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FREQUENTLY ASKED QUESTIONS ABOUT SECTION 245(i)
Part 4
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) is a law that allows certain aliens
to adjust status (be processed or interviewed for a greencard)
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., instead
of going back to the Embassy in their home country, where
they could risk being barred from returning to the U.S. for 10
years.
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).
21.
Does Section 245(i) put me in immediate legal status, allowing
me to work in the U.S., and freely travel outside the U.S.?
Section 245(i) does not create the immediate "right"
to remain or to work in the United States. Instead, it preserves
(or "grandfathers") your future eligibility to
adjust status (be interviewed for a greencard) in the United States,
once (a) your petition is approved, (b) your priority date
is current, and (c) you pay a $1,000 "penalty"
per person over 17 years of age. If you are the spouse, parent,
or child under 21 years of age of a U.S. citizen, you would be
considered an "immediate relative", and would be "immediately"
eligible for work authorization and/or adjustment of status. For
all other types of petitions, it could take many years until you
are eligible to adjust status. For example, a greencard through
Labor Certification may take over 3 years to process. A petition
by a brother or sister could take over 20 years. During that entire
time, the person is not considered to be "in legal
status", or legally authorized to work just because they
had a family petition or Labor Certification filed before the
deadline.
It is important to note that Section 245(i) will
not immediately give you the following:
- It will not give you immediate legal status in
the U.S.
- It will not immediately allow you to work legally
in the United States.
- It will not immediately give you permission to
travel outside of the U.S.
- It will not make your family petition or Labor
Certification move or go any faster
- It will not "save" you from deportation
or any other INS enforcement action
- It is not an "amnesty".
22. If Section 245(i)
does not make me immediately legal and does not grant me work
authorization, why should I rush to have a family petition or
Labor Certification Application filed before April 30, 2001?
Before Section 245(i) came into effect, people who were out
of status, worked without authorization, etc., were required to
go back to the Embassy of their home country to be processed for
their immigrant visas (greencard). Many people are very anxious
and scared over the thought of going back to the Embassy to be
interviewed by the Consul. In addition, if a person who is in
illegal status "departs" the U.S., even for visa processing
at the Embassy, they could be barred from returning to the U.S.
for 3 to 10 years! By having a family petition or Labor Certification
Application filed before April 30, 2001, you would preserve
your future ability to adjust status in the United States, and
also avoid the 3/10 year bar.
23. My U.S. citizen father petitioned
me back in December 1997. Am I covered by Section 245(i), or
do I need to have another petition filed before April 30, 2001?
If a person had a "properly filed" family petition
or Labor Certification Application filed before January
14, 1998 (the deadline for the original version of Section
245(i)), then they could be considered "grandfathered"
under the original version of Section 245(i), and would
not need to again rush to file another petition before the April
30, 2001 deadline.
24. I know that an employer's petition
is faster than a petition by a parent or brother/sister. If
I go to a job agency who will fix me up with an employer before
the April 30, 2001 deadline, wouldn't that be sufficient to
preserve my Section 245(i) eligibility?
In order for a person to be "grandfathered" under
Section 245(i) through an Application for Labor Certification,
not only must the Labor Certification Application be filed before
the deadline, but the Application must also be considered "properly
filed" or "approvable when filed". This means
that the Labor Certification Application must be properly completed
by the sponsoring employer and the alien, and was properly and
timely filed with the Employment Development Department. According
to INS, Labor Certification Applications which are "meritless
or fraudulent" or "cases in which the claimed . .
. employment simply cannot serve as the basis for issuance of
a visa", would not "grandfather" the alien
under Section 245(i). I have come across many people who went
to job agencies, who "fixed them up" with an employer,
but the job is not real, they are not really going to work for
that employer, the employment agency tells them to use fake
or manufactured diplomas or letters of experience, etc. In such
a case, the INS could determine that the Labor Certification
was "meritless or fraudulent", would deny the greencard,
and would also conclude that the person has not
"grandfathered" or preserved his Section 245(i) eligibility.
That is why I suggest that even if a person has an employer's
petition available to them, they should still have a family
petition filed on their behalf, so that the family petition
will act as a "back-up" or "insurance" to
the Labor Certification Application. This way, if the INS should
ever find any problems with your employment-based petition,
and disallows the Section 245(i) eligibility under the employment-based
petition, you will still have a "properly filed" family
petition, and would preserve your Section 245(i) eligibility
under a family petition.
Even though you may already be under petition by
an employer, there is nothing wrong or illegal about being petitioned
in as many different ways as are legitimately available to you.
Therefore, you could be petitioned by your parent, brother, sister,
and also be petitioned by the employer. If you happen to get the
greencard faster through the employer, then take the greencard.
However, a family petition would always provide you with a "back
up" or "insurance" for Section 245(i).
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