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EVERY ALIEN IN AMERICA WHO WANTS A GREENCARD
SHOULD TAKE ADVANTAGE OF SECTION 245(i)
by Michael J. Gurfinkel, Esq.
Dear Atty. Gurfinkel:
I am currently working for my employer under an
H-1B visa (temporary working visa for college graduates). I am
very happy with my job, and would eventually like to get a greencard.
However, I feel uncomfortable about asking my employer to petition
me for a greencard through Labor Certification right now.
I have heard a lot about Section 245(i), and how
it enables persons who are out of status to eventually be eligible
to adjust status (be interviewed for a greencard) in the U.S.
Since I am still in status, and my H-1B visa is still good for
a few more years, is there really a need or reason for me to beat
the April 30, 2001 deadline to be "grandfathered" under
Section 245(i), since I do not plan on going out of status?
Very truly yours,
R.F.
Dear R.F.:
Even if a person is presently in valid, legal status,
I would still recommend that, if they have the chance, they should
still avail of Section 245(i) before the April 30, 2001 deadline.
The reason is that even though you may presently be "in status",
you don't know if you will always remain in status. What happens
if your employer goes out of business, while you are still on
an H-1B visa? What happens if the employer's business slows down,
and you are laid off, while you are only on an H-1B visa? If that
happens, you then run the risk of going "out of status",
and may not later be eligible to adjust status (be interviewed
for a greencard) in the U.S. An H-1B visa does not "grandfather"
a person under Section 245(i). Only Labor Certification for a
greencard does.
Section 245(i) was designed to enable a person to
adjust status in the U.S., even if he is out of status (or goes
out of status), works without authorization, is a jumpship, snuck
across the border, etc., as long as the person has a "properly
filed" and "approvable" family petition
or Labor Certification Application before the April 30, 2001 deadline.
In your case, you know that you eventually want
to get a greencard. Why take chances by letting the April
30, 2001 deadline pass without having an employer (or appropriate
family member) file a Labor Certification Application (or family
petition) on your behalf before the deadline. This way, even if
some untoward event occurred after the deadline, such as an employer
going out of business, a petitioner dies etc., you would have
preserved your Section 245(i) eligibility. (Note: If an
employer goes out of business, or a petitioner dies, that particular
case or petition is considered revoked or terminated. But you
would still be able to preserve or transfer the Section 245(i)
eligibility from that "dead" case for later use on a
new or different Labor Certification Application (or family petition),
which is filed long after the deadline.
I strongly recommend that every nonimmigrant (whether
in illegal or legal status), seek the advice of a reputable attorney,
who can analyze your case and situation, and determine the best
way for you to preserve your Section 245(i) eligibility, so that
you could eventually be eligible to adjust status in the U.S.
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