I.N.S. memo says no deportations based on Section 245(i) filings

Dear Atty. Gurfinkel:

I heard a lot about Section 245(i), but I was hesitant to ask my brother, who is a U.S. citizen, to file a family petition on my behalf so I can avail of Section 245(i) My. hesitation stemmed from fear that the I.N.S. might use the information I will put in my petition to come after me, and start deportation proceedings against me and my family I was worried that if I filed a petition to avail of Section 245(i), I’ll get deported.

Did I err in deciding not to avail of Section 245(i)? Will I still have chance to avail of Section 245(i)?

Very truly yours,
JA

Dear JA:

You were not alone in having reservations about filing a family petition or Labor Certification Application in order to avail of Section 245(i) before the April 30, 2001 deadline. Many people expressed the same fear – that the I.N.S. might use the information on their family petition or labor certification application to initiate removal (deportation) proceedings against them. So these people thought that it might be better to remain a TNT, rather than risking being deported.

As a background, Section 245(i) is a law that allows certain aliens to adjust status (be processed for a green card) in the United States, even though they may be out of status, a TNT, worked without I.N.S. authorization, crewmen who jumped ship, entered the U.S. without inspection (snuck across the borders), overstayed, etc.

Section 245(i) originally expired on January 14, 1998, but was extended until April 30, 2001 when President Clinton signed into law on December 21, the Legal Immigration and Family Equity (LIFE) Act.

As for INS using family petitions or labor certification applications to find and deport aliens, there is great news. On April 27, 2001, INS Headquarters in Washington DC issued a memorandum to all INS Regional Directors, instructing that "field offices shall not initiate removal proceedings against an alien who is eligible for adjustment under Section 245(i), if such action is based solely on the filing of an immigration petition, labor certification application, or application for adjustment of status filed by , or on behalf of, that alien on or after the date of this memorandum [April 27, 2001] seeking to legalize the alien’s status under Section 245(i)."

This memorandum, written by Michael A. Pearson, Executive Associate Commissioner, Office of Field Operations states that the I.N.S. should not start removal (deportation) proceedings against an alien based solely on information contained in his or her Section 245(i) filing. "This prohibition applies during the period of time the petition or application is pending, but ends if and when the petition or application is denied."

The reason for the memorandum from INS headquarters is to ensure that "individuals eligible for the benefits of Section 245(i) of the INS, and relatives or employers eligible to file immigrant petitions or labor certifications on their behalf, will not be deterred from initiating the process to legalize their status through fear that their filing will be used to identify and remove them."

However, this memorandum should not be interpreted as a sort of amnesty or moratorium on deportations. Pearson made it clear that the memo is not intended to inhibit the INS’s responsibility to deter and detect fraud, or to remove criminal or other removable (deportable) aliens who are not eligible for adjustment of status under Section 245(i) because they are not admissible to the U.S. for permanent residence.

In addition, illegal aliens who are encountered in the course of routine enforcement actions, or who otherwise come to the attention of the I.N.S. "other than by reason of the fact they are seeking to legalize their status under Section 245(i)," should continue to be processed for removal according to established procedures, whether or not they are seeking to adjust their status under Section 245(i). In other words, if INS finds you through some other means (such as a jealous co-worker writing an anonymous letter to the INS), the INS could still take steps to deport a person. But this memo makes clear that Section 245(i) filings should not be used to find and/or deport you.

If you missed the chance to avail of Section 245(i), you may soon have the chance to do so. Congress is currently deliberating on at least two bills, that would either extend Section 245(i) again beyond the lapsed April 30, 2001 deadline, or permanently restore it. In addition, President George W. Bush has endorsed the extension of Section 245(i).

If and when the extension is granted by Congress and signed into law by President Bush, I hope that Pearson’s memorandum would convince you this time to file your petition or Labor Certification Application to avail of Section 245(i). 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 benefits of 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.)