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WHAT ARE THE ADVANTAGES OF SECTION 245(i)?
by Michael J. Gurfinkel, Esq.
Dear Atty. Gurfinkel:
I have been out of status in the U.S. for several years. I have
heard a lot about Section 245(i), but still cannot make up my
mind if I should avail of that law before the April 30, 2001 deadline.
What are the advantages for a person to avail of Section 245(i)?
Very truly yours,
A.G.
Dear A.G.:
There are so many advantages for a person in the U.S. to avail
of Section 245(i). Here are just a few:
- Section 245(i) allows a person who is out of
status in the U.S. to preserve his or her future ability to
adjust status (be interviewed for a greencard in the U.S.).
- While Section 245(i) does not put a person in
immediate "status" or grant immediate work authorization, Section
245(i) would later "forgive" a person who had previously been
out of status and/or worked without INS authorization.
- Section 245(i) enables a person to avoid the
3 to 10-year bar (from returning to the U.S.), because Section
245(i) in many cases allows a person to be interviewed for a
greencard in the U.S., rather than requiring the person to return
to his home country, and be interviewed for a visa at the Embassy.
- Section 245(i) could enable crewmen or jumpships
to adjust status in the U.S.
- Section 245(i) could enable people who entered
the U.S. without inspection (snuck across the border), to be
interviewed for a greencard in the U.S.
- Section 245(i) is transferrable, as long as
a person has a "properly filed" family petition or labor
certification application before the April 30, 2001 deadline.
They could later "transfer" the Section 245(i) eligibility from
the family petition or labor certification application which
was filed before the deadline, onto a later, faster family petition
or labor certification application filed after the deadline.
- A person retains his or her Section 245(i) eligibility,
even if a petitioner dies, an employer goes out of business,
the case is withdrawn, etc. Although, in such cases, the case
itself is "dead", the person can, nevertheless, preserve his
or her Section 245(i) eligibility for later use on a new or
different case, filed long after the deadline.
- The INS has stated that it would generally not
use these family petitions or labor certification applications
to find illegal aliens and/or deport them (except in certain
cases where the alien might have already been subject to a deportation
order or convicted of certain crimes, etc.)
- A person's family petition or labor certification
application does not have to be "approved" in order for a person
to be "grandfathered" under Section 245(i). Instead,
in order for a person to be "grandfathered", the family
petition or labor certification application has to merely be
properly filed, and it must have been "approvable at the time
of filing".
There are so many more advantages to Section 245(i)
that it is in your best interest to take advantage of this law.
That is why I strongly recommend that you seek the advice of a
reputable attorney, who can analyze your situation, determine
if you are eligible for Section 245(i), and then assist you in
making sure that you have properly "grandfathered" your eligibility
under Section 245(i). If a person is outside the U.S., but has
a friend or relative in the U.S., they should tell that friend
or relative in the U.S. to take advantage of Section 245(i).
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