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SECTION 245(i): A WAY FOR TNT’S IN THE U.S. TO AVOID THE
U.S. EMBASSY
by Michael J. Gurfinkel, Esq.
Dear Atty. Gurfinkel:
I have been out of status in the U.S. for several
years, and would like to find a way to get a green card. I have
heard and read a lot about Section 245(i), and how it preserves
a person's future ability to adjust status, or be interviewed
for a green card, in the U.S.
However, I have also heard that Section 245(i) does
not necessarily put a person in immediate legal status, grant
immediate work authorization, shield a person from deportation,
allow them to travel outside the U.S., etc.
If Section 245(i) does not provide immediate immigration
benefits, why should a person rush to avail of this law before
it expires on April 30, 2001?
Very truly yours,
F.T.
Dear F.T.:
One of the most important features of Section 245(i)
is it enables a person who is out of status to preserve his ability
to eventually adjust status in the U.S., instead of having
to go back to the U.S. Embassy in their home country for visa
processing. Before Section 245(i) was enacted, a person who was
out of status (TNT), worked without authorization, overstayed,
etc., was not eligible to adjust status in the U.S. (There
was an exception for "immediate relatives" [spouse,
parent, minor child of U.S. citizen].) However, most other people
under petition were required to go back to the U.S. Embassy for
visa processing.) Under new laws that were enacted in 1996, if
a person goes back to the U.S. Embassy for visa processing, it
can be very dangerous. The reason is there is another law (aside
from Section 245(i)) which states that if a person has been out
of status in the U.S. for more than six months, and then "departs"
the U.S. (even for visa processing at the Embassy), that person
could be barred (or prohibited) from returning to the U.S. for
3 or 10 years. Therefore, if a person goes back to the U.S. Embassy
for visa processing, it could mean that he may not be able to
return to the U.S. for between 3 to 10 years.
Section 245(i) is a way by which a person could
possibly avoid the 3/10 year bar, by preserving his future eligibility
to adjust status in the U.S.. Although Section 245(i) does
not grant immediate immigration benefits (except for immediate
relatives of U.S. citizens), it, nevertheless, preserves
that person's future ability to be processed for their green card
(adjust status) in the U.S., as long as the person avails of Section
245(i) before its expiration on April 30, 2001. In order for a
person to avail of Section 245(i), he must meet the following
requirements:
- He must have been physically present in the U.S.
on December 21, 2000.
- He must have a "properly filed"
family petition or Labor Certification Application filed on
his behalf on or before April 30, 2001.
- In addition, the family petition or Labor Certification
Application must have been "approvable at the time of
filing". Remember, for family petitions, only certain
family members can petition you. For Labor Certification, the
job must be real, the employer must be financially stable and
willing to pay the prevailing wage, and you must be qualified
for the job.
- If a person had a family petition or Labor Certification
Application filed on their behalf on or before January 14,
1998 (under the original version of Section 245(i)) there
is no requirement that the person had to have been "physically
present" in the U.S. on December 21, 2000.
- As long as a person has a "properly filed"
family petition or Labor Certification Application filed before
the deadline, the person could be considered "grandfathered"
under Section 245(i) and would preserve his future ability
to adjust status in the U.S. In addition, as long as a person
has any properly filed family petition or Labor Certification
Application filed before the deadline, INS will allow the person
to transfer his Section 245(i) eligibility on to a new
or different family petition or Labor Certification Application,
which could be filed even after the deadline has passed.
The bottom line is that there are so many advantages
to Section 245(i), that it is well worth your time and effort
to avail of the law. Even though a person will not necessarily
be put in immediate legal status (or will not immediately be shielded
or protected from deportation/removal), Section 245(i) would still
enable you to avoid the 3/10 year bar, which you could be subject
to, if you were required to later depart the U.S. for immigrant
visa processing at the U.S. Embassy. That is why I strongly advise
that you immediately seek the advice of a reputable attorney,
who can analyze your case, determine your eligibility for Section
245(i), and assist you in making sure that you have a "properly
filed" family petition or Labor Certification Application
which would be considered "approvable at the time of filing".
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