Frequently asked questions about Section 245(i) - IMMIGRATION CORNER by Michael J. Gurfinkel

(Part 4)

On December 21, 2000, the Legal Immigration and Family Equity Act (LIFE Act) was signed into law. The LIFE Act included, among its provisions, an extension of Section 245(i) until April 30, 2001.

Section 245(i) is a law that allows certain aliens to adjust status (be processed or interviewed for a greencard) in the U.S., even though they may be out of status, TNT, worked without INS authorization, crewmen who jumped ship, entered the U.S. without inspection (snuck across the border), etc., instead of going back to the Embassy in their home country, where they could risk being barred from returning to the U.S. for 10 years.

In previous articles, I answered several of the most frequently asked questions (FAQ’s) about Section 245(i). Here are some more FAQ’s about Section 245(i).

21. Does Section 245(i) put me in immediate legal status, allowing me to work in the U.S., and freely travel outside the U.S.?

Section 245(i) does not create the immediate "right" to remain or to work in the United States. Instead, it preserves (or "grandfathers") your future eligibility to adjust status (be interviewed for a greencard) in the United States, once (a) your petition is approved, (b) your priority date is current, and (c) you pay a $1,000 "penalty" per person over 17 years of age.

If you are the spouse, parent, or child under 21 years of age of a U.S. citizen, you would be considered an "immediate relative", and would be "immediately" eligible for work authorization and/or adjustment of status. For all other types of petitions, it could take many years until you are eligible to adjust status. For example, a greencard through Labor Certification may take over 3 years to process. A petition by a brother or sister could take over 20 years. During that entire time, the person is not considered to be "in legal status", or legally authorized to work just because they had a family petition or Labor Certification filed before the deadline.

It is important to note that Section 245(i) will not immediately give you the following:

• It will not give you immediate legal status in the U.S.

• It will not immediately allow you to work legally in the United States.

• It will not immediately give you permission to travel outside of the U.S.

• It will not make your family petition or Labor Certification move or go any faster

• It will not "save" you from deportation or any other INS enforcement action

• It is not an "amnesty".

22. If Section 245(i) does not make me immediately legal and does not grant me work authorization, why should I rush to have a family petition or Labor Certification Application filed before April 30, 2001?

Before Section 245(i) came into effect, people who were out of status, worked without authorization, etc., were required to go back to the Embassy of their home country to be processed for their immigrant visas (greencard). Many people are very anxious and scared over the thought of going back to the Embassy to be interviewed by the Consul. In addition, if a person who is in illegal status "departs" the U.S., even for visa processing at the Embassy, they could be barred from returning to the U.S. for 3 to 10 years! By having a family petition or Labor Certification Application filed before April 30, 2001, you would preserve your future ability to adjust status in the United States, and also avoid the 3/10 year bar.

23. My U.S. citizen father petitioned me back in December 1997. Am I covered by Section 245(i), or do I need to have another petition filed before April 30, 2001?

If a person had a "properly filed" family petition or Labor Certification Application filed before January 14, 1998 (the deadline for the original version of Section 245(i)), then they could be considered "grandfathered" under the original version of Section 245(i), and would not need to again rush to file another petition before the April 30, 2001 deadline.

24. I know that an employer’s petition is faster than a petition by a parent or brother/sister. If I go to a job agency who will fix me up with an employer before the April 30, 2001 deadline, wouldn’t that be sufficient to preserve my Section 245(i) eligibility?

In order for a person to be "grandfathered" under Section 245(i) through an Application for Labor Certification, not only must the Labor Certification Application be filed before the deadline, but the Application must also be considered "properly filed" or "approvable when filed". This means that the Labor Certification Application must be properly completed by the sponsoring employer and the alien, and was properly and timely filed with the Employment Development Department. According to INS, Labor Certification Applications which are "meritless or fraudulent" or "cases in which the claimed . . . employment simply cannot serve as the basis for issuance of a visa", would not "grandfather" the alien under Section 245(i). I have come across many people who went to job agencies, who "fixed them up" with an employer, but the job is not real, they are not really going to work for that employer, the employment agency tells them to use fake or manufactured diplomas or letters of experience, etc. In such a case, the INS could determine that the Labor Certification was "meritless or fraudulent", would deny the greencard, and would also conclude that the person has not "grandfathered" or preserved his Section 245(i) eligibility.

That is why I suggest that even if a person has an employer’s petition available to them, they should still have a family petition filed on their behalf, so that the family petition will act as a "back-up" or "insurance" to the Labor Certification Application. This way, if the INS should ever find any problems with your employment-based petition, and disallows the Section 245(i) eligibility under the employment-based petition, you will still have a "properly filed" family petition, and would preserve your Section 245(i) eligibility under a family petition.

Even though you may already be under petition by an employer, there is nothing wrong or illegal about being petitioned in as many different ways as are legitimately available to you. Therefore, you could be petitioned by your parent, brother, sister, and also be petitioned by the employer. If you happen to get the greencard faster through the employer, then take the greencard. However, a family petition would always provide you with a "back up" or "insurance" for Section 245(i).

Michael J. Gurfinkel has been a licensed attorney in California for 21 years. He has always excelled in school: Valedictorian in High School; Cum Laude at UCLA; and Law Degree Honors and academic scholar at Loyola Law School, which is one of the top law schools in California. He is also an active member of the State Bar of California, the American Immigration Lawyers Association, and the Immigration Section of the Los Angeles County Bar Association. All immigration services are provided by an active member of the State Bar of California and/or by a person under the supervision of an active member of the State Bar.

His offices are located at 219 North Brand Boulevard, Glendale, California, 91203 Telephone: (818) 543-5800. His Makati office is located at Heart Tower, Unit 701, 108 Valero Street, Salcedo Village, Makati, Philippines; Telephone: 894-0258 or 894-0239. For more information about the Law Offices of Michael J. Gurfinkel, and to read previously published articles, please visit our website at www.gurfinkel.com

(This is for informational purposes only, and reflects the firm’s opinions and views on general issues. Each case is different and results may depend on the facts of a particular case. No prediction, warranty or guarantee can be made about the results of any case. Should you need or want legal advice, you should consult with and retain counsel of your own choice.)