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YOU CAN RECYCLE AND RE-USE SECTION 245(i) - PART I
by Michael J. Gurfinkel, Esq.
The April 30, 2001 deadline for people to avail
of Section 245(i) is now in the history books. Tens of thousands
of aliens took advantage of this law, by having family petitions
or labor certification applications filed on their behalf before
the deadline.
There have been several proposals to extend
Section 245(i), but these are still bills in Congress, and are
not yet law. We strongly support an extension of 245(i), and we
urge all people to write to their Senators and Congressmen, urging
an extension of Section 245(i).
For those of you who did avail of Section
245(i) (either through a family petition or employer's labor certification
application), here are some items which you may want to consider:
- Section 245(i) is transferrable from a
case filed before the deadline to a new case filed after the
deadline.
According to INS, as long as you had any
"approvable" family petition or labor certification
application filed before the April 30, 2001 deadline,
you are "grandfathered" under Section 245(i). If,
after the April 30, 2001 deadline, you find a faster
way to obtain a green card, you can take your Section 245(i)
eligibility from the case filed before the deadline,
and transfer it onto a new case filed long after the
deadline. For example, if you were petitioned by a brother or
sister before the April 30, 2001 deadline, you would have secured
Section 245(i) eligibility. However, a petition by a brother
or sister can take over 20 years before you could be
eligible for a green card. If you should later find a faster
way to get a green card, such as through an employer's labor
certification application, the employer could file the labor
certification application long after the 245(i) deadline, and
you could take your Section 245(i) from the petition filed by
your brother or sister (filed before the deadline), onto a new
case, filed long after the deadline. Therefore, if you have
secured 245(i), you should now look for faster ways to obtain
a green card, and use the Section 245(i) from a "slow"
case, and transfer it onto a "faster" case.
- Denied or withdrawn petitions could
still grandfather an alien under Section 245(i).
According to INS, as long as a person's case was
"approvable when filed", the alien would continue
to be grandfathered under Section 245(i), even if circumstances
change, such as the petitioner dies, the employer goes out of
business, etc. While it is true that the particular petition
would be considered "dead" (and will not result in
a green card), the alien would still preserve his or her Section
245(i) eligibility, which could later be used in a new case
filed after the deadline. For example, if you were sponsored
by an employer through a labor certification application filed
before the deadline, but the employer later goes out
of business, you could still preserve your Section 245(i) eligibility.
Although that particular employer's case would be considered
"dead", you could thereafter find another employer,
who could file a new case, and you could "transfer"
or preserve your Section 245(i) from the dead case, and use
that Section 245(i) eligibility with the new case, filed after
the deadline. The key is that the case must have been "approvable
when filed", in order for a person to preserve Section
245(i). If, at the outset, the case is fraudulent or lacked
merit, then a person would not preserve Section 245(i).
- Children and spouses are also grandfathered
under Section 245(i).
If a person is the beneficiary of a family petition
or labor certification application, not only is the person under
petition "grandfathered" under Section 245(i), but
also that person's spouse and children under 21. For example,
if you were sponsored by an employer through labor certification,
not only are you grandfathered under Section 245(i), but also
your spouse and children under 21.
As you can see, there are numerous advantages to
Section 245(i), once you have been grandfathered. The fact that
245(i) is transferrable to a different case, and is retained even
after various changes in circumstances, means that you should
look for faster ways to obtain a green card.
If you have been grandfathered under Section 245(i)
under a slow-family petition, you should consider finding an employer
for labor certification. In addition, 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 transferability
benefits of Section 245(i).
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