|  YOU
CAN USE YOUR OLD SECTION 245(i) FILING FOR A NEWLY FILED CASE
– Part 1
by Michael J. Gurfinkel, Esq.
Dear Atty. Gurfinkel:
I have been out of status in the U.S. for several years now. A
few years ago, I heard about Section 245(i), which allows illegal
aliens to adjust status (be interviewed for a green card) in the
US - as long as they were petitioned before April 30, 2001.
I was petitioned by my employer and by my father
before the deadline, but my employer later went out of business
and my father passed away. Is my 245(i) eligibility dead too?
I really don’t fully understand what 245(i) is all about,
and how I can use it to my best benefit.
Very truly yours,
AF
Dear A.F.:
Many people applied for Section 245(i) before the
deadline, but still have questions about what benefits it provides,
and who can avail of those benefits. Below are some common questions
people have.
1. What is Section
245(i)?
Section 245(i) was a great law for aliens who were
out of status. It allowed 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 green card in the U.S.), even if they overstayed,
worked without authorization, snuck across the border, jumped
ship, etc.
2. How can a
person be eligible (or “grandfathered”) for Section
245(i)?
A person is eligible for Section 245(i) if the following
conditions were met under the original
or the second version of Section
245(i):
Under Original Version of 245(i):
- The person had a “properly filed” and “approvable
when filed” family petition or labor certification filed
on his/her behalf on or before January
14, 1998.
Under Second Version of 245(i):
- The person had a “properly filed” and “approvable
when filed” family petition or labor certification filed
on his/her behalf between January
15, 1998 and April
30, 2001; and
- The person was “physically present” in the US
on December 21, 2000.
Note: There was no requirement that an alien be “physically
present” in the U.S. to qualify under the original
version.
3. Does Section
245(i) allow a person to immediately begin working legally?
While Section 245(i) does not put a person in immediate
legal “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 DHS authorization.
4. What if I
secured 245(i) before the deadline, but the petitioner died or
employer went out of business?
People who benefitted from Section 245(i) by being
petitioned before the deadline, could still retain theirs 245(i)
eligibility, even if the petitioner died or if the employer went
out of business or “backed out”. While the originally
filed case might be “dead”, the person could transfer
that Section 245(i) eligibility to new and different case, filed
after the deadline. Therefore,
even if the person’s original case is “dead”,
his Section 245(i) eligibility (or his family’s 245(i) eligibility)
could live on, through a newly filed case.
As you can see, there are numerous advantages to
Section 245(i), once you have been grandfathered. The fact that
Section 245(i) eligibility is transferable 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). If you are out of status, but have
Section 245(i) eligibility, use it to its fullest potential! In
future articles, I will discuss more frequently asked questions
about Section 245(i).
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