USING YOUR OLD SECTION 245(i) FILING FOR A NEWLY FILED CASE – Part 2

By Michael J. Gurfinkel, Esq.

In a previous article, I discussed some of the commonly asked questions about the benefits of Section 245(i), which was a law that allows a person who is out of status 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.

Here are some more commonly asked questions about Section 245(i):

5. Is Section 245(i) transferable from a case filed BEFORE the April 30, 2001 deadline to a new case filed AFTER the deadline?

According to USCIS, 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 “transfer” your Section 245(i) eligibility from the case filed before the deadline to a new case filed after the deadline (such as a new family petition, or a labor certification case by an employer). For example, if you were petitioned by a brother, sister or a parent before the April 30, 2001 deadline, you would have secured Section 245(i) eligibility. However, these family petitions can take over 15 to 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 after the 245(i) deadline, and you could “transfer” your Section 245(i) eligibility from the petition filed by your parent, brother or sister (filed before the deadline), onto a new case (filed after the deadline). It is like a “245(i) coupon” that can be used with a later filed case. Therefore, if you have secured 245(i) eligibility, 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.

6. Could I still retain Section 245(i) eligibility if my original case was denied or withdrawn?

According to USCIS 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 original family petition or labor certification application 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).

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 a future article, I will discuss more frequently asked questions about Section 245(i).