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

Part V

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) allows certain illegal aliens to adjust status (be processed or interviewed for a greencard) in the U.S., rather than going back to the US Embassy for visa processing, even though the alien 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.

Although in many cases, Section 245(i) does not grant immediate legal status or work authorization, Section 245(i) would preserve the alien’s future ability to be processed for their greencard in the U.S., once the family or employer’s petition is approved, AND their priority date is current, even though that may be many years from now.

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).

25. I heard that in order to be eligible for Section 245(i), I need to pay a $1,000 penalty to INS. If I send a check or money order to the INS right now for $1,000, can I get my work authorization?

The $1,000 penalty is to be paid only after a person’s family or employer’s petition is approved and the person’s priority date is current. Only then can a person file for adjustment of status (be interviewed for a greencard in the U.S.). The $1,000 "penalty" that an alien pays to the INS is in order to enable an illegal alien to eventually be "forgiven" by the INS for having been out of status, worked without authorization, jumped ship, entered without inspection (snuck across the border), etc. If a person files for adjustment of status (or sends the money in to the INS) any sooner, the INS will reject the adjustment of status package.

26. My employer petitioned me for an H-IB visa. Am I "grandfathered" under Section 245(i) based on my employer’s H-IB petition?

An H-IB is a temporary nonimmigrant visa. In order for an alien to be "grandfathered" (preserve his Section 245(i) based on an employer’s petition), the employer must properly file a Labor Certification Application on behalf of the alien for a permanent greencard. An H-IB visa will NOT grandfather an alien, because it does not result in a permanent greencard. Therefore, if you are under petition by the employer for an H-IB visa, you need to have the employer file a Labor Certification Application on your behalf before the April 30, 2001 deadline.

27. I was petitioned by my employer for a greencard through Labor Certification. However, my employer is now experiencing financial difficulties. What happens to my Section 245(i) eligibility if my employer goes out of business?

According to INS, as long as the Labor Certification was "properly filed" (meaning that, at the time it was filed, it met the legal and regulatory requirements, and was not "fraudulent or without any basis in law or fact", i.e. (it cannot be a "fixed" or made up job, etc.), then you would continue to preserve your Section 245(i) eligibility, even if your employer should later go out of business, pull or withdraw your case, etc. Then, if you should find another employer who would petition you (even after the April 30, 2001 deadline), you would still be eligible to adjust status in the US under Section 245(i) by "transferring" your Section 245(i) from the old employer’s case, onto the new employer’s case. In other words, by beating the deadline with any properly filed family petition or Labor Certification Application, you preserve Section 245(i) eligibility, and you can use your Section 245(i) eligibility either on that case, or on any new or different case, even if that new or different case is filed after the deadline.

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.)