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YOU CAN RECYCLE AND RE-USE SECTION 245(i) - PART II
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).
In a previous article, I discussed some items which
you may want to consider, if you already availed of Section 245(i).
Here are more items to consider:
4. After-acquired
spouses of the grandfathered alien are also grandfathered.
Many aliens who avail of Section 245(i) before the
deadline will marry or have children after the qualifying
family petition or labor certification application was filed,
but before adjustment of status. These "after-acquired"
children and spouses are also allowed to adjust status (be interviewed
for a green card in the U.S.) under Section 245(i), as long as
they acquired the status of a spouse or child before the
principal alien ultimately adjusts status. For example, if a single
person was sponsored for labor certification before the deadline,
and, while the case is pending, he marries someone who is TNT,
then that TNT spouse could also avail of Section 245(i), even
though that newly-acquired spouse did not have a case filed on
his or her behalf before the deadline. In other words, the newly-acquired
spouse or children can later be "added on" to the original
petitioned (or sponsored) alien's Section 245(i) eligibility.
In addition, the after-acquired spouse would not be required to
have been "physically present" in the U.S. on December
21, 2000. Only the original petitioned alien needed to be "physically
present" in the U.S. (NOTE: Unmarried sons and daughters
of green card holders should not get married, as that would
void their petition.)
5. Aged-out children
continue to retain Section 245(i) eligibility, even after reaching
21 years of age.
Sometimes a parent is under petition, and he has a single
child who is under 21 years of age. That child, of course, would
also be covered under Section 245(i), and could adjust status
along with the parent, provided that the child is still under
21 years of age at the time of the parent's adjustment of status.
However, if the child turns 21 before the parent adjusts
status, the child is considered to have "aged out",
and is no longer included under the parent's case. Although the
"aged out" child cannot be included under the parent's
case, the child retains his Section 245(i) eligibility, and if
he could, perhaps, find an employer to petition him, he could
use the Section 245(i) eligibility acquired while he was still
under 21 through the parent's case. This "aged out"
child could also marry, and would continue to preserve his Section
245(i) eligibility.
6. A grandfathered spouse would retain
Section 245(i), even after a divorce.
If a person is petitioned by an employer or family member,
that person is, of course, grandfathered under Section 245(i).
In addition, his or her spouse is also grandfathered. However,
if, before the principal alien adjusts status, the couple gets
divorced, the spouse would still retain Section 245(i), even
though he or she is no longer the spouse, and no longer eligible
to adjust under the sponsored alien's petition. In that case,
the divorced spouse could find an employer on his or her own,
and be sponsored by their own employer for labor certification,
long after the deadline.
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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