USING YOUR OLD SECTION 245(i) FILING FOR A NEWLY FILED CASE – Part 1

by Michael J. Gurfinkel, Esq.

Dear Atty. Gurfinkel:

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. Can I still use it to my advantage?

Very truly yours,

AF

Dear A.F.:

Many people applied for Section 245(i) before the April 30, 2001deadline, 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 are out of status. It 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 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):

1. 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):

1. 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
2. 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 their 245(i) eligibility for a new case, 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. However, you ordinarily would not be able to retain or recycle the original priority date.

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 (such as a petition by a parent, brother/sister, etc.), 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).