 |
 |
I.N.S. MEMO SAYS NO DEPORTATIONS BASED
ON SECTION 245(i) FILINGS
by Michael J. Gurfinkel, Esq.
Dear Atty. Gurfinkel:
I heard a lot about Section 245(i), but I was hesitant
to ask my brother, who is a U.S. citizen, to file a family petition
on my behalf so I can avail of Section 245(i). My hesitation stemmed
from fear that the I.N.S. might use the information I will put
in my petition to come after me, and start deportation proceedings
against me and my family. I was worried that if I filed a petition
to avail of Section 245(i), I'll get deported.
Did I err in deciding not to avail of Section 245(i)?
Will I still have a chance to avail of Section 245(i)?
Very truly yours,
JA
Dear JA:
You were not alone in having reservations about filing a family
petition or Labor Certification Application in order to avail
of Section 245(i) before the April 30, 2001 deadline. Many people
expressed the same fear ² that the I.N.S. might use the information
on their family petition or labor certification application to
initiate removal (deportation) proceedings against them. So, these
people thought that it might be better to remain a TNT, rather
than risking being deported.
As a background, Section 245(i) is a law that allows
certain aliens to adjust status (be processed for a green card)
in the United States, even though they may be out of status, a
TNT, worked without I.N.S. authorization, crewmen who jumped ship,
entered the U.S. without inspection (snuck across the border),
overstayed, etc.
Section 245(i) originally expired on January 14,
1998, but was extended until April 30, 2001 when President Clinton
signed into law on December 21, 2000 the Legal Immigration and
Family Equity (LIFE) Act.
As for INS using family petitions or labor certification
applications to find and deport aliens, there is great news. On
April 27, 2001, INS Headquarters in Washington, D.C., issued a
memorandum to all INS Regional Directors, instructing that "field
offices shall not initiate removal proceedings against an alien
who is eligible for adjustment under Section 245(i), if such
action is based solely on the filing of an immigration petition,
labor certification application, or application for adjustment
of status filed by, or on behalf of, that alien on or after
the date of this memorandum [April 27, 2001] seeking to legalize
the alien's status under Section 245(i)."
This memorandum, written by Michael A. Pearson,
Executive Associate Commissioner, Office of Field Operations,
states that the I.N.S. should not start removal (deportation)
proceedings against an alien based solely on information contained
in his or her Section 245(i) filing. "This prohibition applies
during the period of time the petition or application is pending,
but ends if and when the petition or application is denied."
The reason for the memorandum from INS Headquarters
is to ensure that "individuals eligible for the benefits
of Section 245(i) of the INA, and relatives or employers eligible
to file immigrant petitions or labor certifications on their behalf,
will not be deterred from initiating the process
to legalize their status through fear that their filing will be
used to identify and remove them".
However, this memorandum should not be interpreted
as a sort of amnesty or moratorium on deportations. Pearson
made it clear that the memo is not intended to inhibit the INS's
responsibility to deter and detect fraud, or to remove criminal
or other removable (deportable) aliens who are not eligible for
adjustment of status under Section 245(i) because they are not
admissible to the U.S. for permanent residence.
In addition, illegal aliens who are encountered
in the course of routine enforcement actions, or who otherwise
come to the attention of the I.N.S. "other than by reason
of the fact they are seeking to legalize their status under Section
245(i)," should continue to be processed for removal, according
to established procedures, whether or not they are seeking to
adjust their status under Section 245(i). In other words, if INS
finds you through some other means (such as a jealous co-worker
writing an anonymous letter to the INS), the INS could still take
steps to deport a person. But this memo makes clear that Section
245(i) filings should not be used to find and/or deport you.
If you missed the chance to avail of Section 245(i),
you may soon have the chance to do so. Congress is currently deliberating
on at least two bills, that would either extend Section 245(i)
again beyond the lapsed April 30, 2001 deadline, or permanently
restore it. In addition, President George W. Bush has endorsed
the extension of Section 245(i).
If and when the extension is granted by Congress
and signed into law by President Bush, I hope that Pearson's memorandum
would convince you this time to file your petition or Labor Certification
Application to avail of Section 245(i). I strongly recommend that
you seek the advice of a reputable attorney, who can analyze your
situation, and advise you on the proper way of legalizing your
status in the fastest possible way, using the benefits of Section
245(i).
Back
to Main
|
|
|
