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US Immigration

 
Posted 12/22/2007
 
IMMIGRATION / By MARIA AGUILA

Section 245(i) of the Immigration and Nationality Act: Separating the Truth from Fiction


There is a lot of talk, rumor, gossip, and poor media coverage regarding amnesty, so much so, that is necessary to set the record straight.

The dictionary definition of amnesty is "an act of forgiveness for past offenses, especially to a class of persons as a whole."

First myth: Section 245(i) of the Immigration and Nationality Act as amended by the Legal Immigration Family Equity Act ("LIFE Act") Amendments of 2000 is not amnesty for all illegal immigrants; 245(i) it does not allow everyone who entered the country illegally, or who overstayed their visas to get a "green card," no matter how long they have been in the U.S.

Second myth: Section 245(i) does not forgive all sins, such as using fraudulent documents. Third myth: Section 245(i) is also not a "new" law. The deadline for filing under the section originally passed in 1996. Then, on December 21, 2000, law was passed that extended that deadline until April 30, 2001. To date, that deadline still stands.
     
The rest of this article will go provide details about 245(i) and how one may qualify to adjust status under this provision of immigration laws.

1. What is section 245(i)?

Answer: 245(i) of the Immigration and Nationality Act allows some persons to become permanent residents without leaving the U.S. through a process called "adjustment of status". Generally, persons who either 1) entered the U.S. without being inspected by a USCIS officer, 2) were unlawfully employed in the U.S., or 3) failed to always maintain lawful status in the U.S. are barred from adjusting their status in the U.S. There is a $1,000.00 fee in addition to the normal filing fees and an additional form. Note: New filing fees are in effect since July 30, 2007.



2. What must I do to qualify for 245(i)?

Answer: A person who had a properly filed and approvable when filed labor certification or visa petition filed on their behalf after January 14, 1998, but on or before April 30, 2001,qualifies for the benefits of §245(i) but only if they were physically present in the U.S. on the date of enactment of the new law (December 21, 2000). If the properly filed and approvable when filed labor certification or visa petition was filed prior to January 15, 1998,you are required to be physically present in the U.S. at the time of filing under 245(i). However, pre-January 15 filings that are deficient because they were submitted without fee, or because they were fraudulent or without any basis in law or fact, should not be considered to have grandfathered the alien. Please consult a reputable attorney to see if your previously filed visa petition or labor certification may qualify under 245(i)).

3. Does this mean that I must have been lawfully in the U.S. on December 21, 2000?

Answer: No, merely that you were present, legally or illegally, in the U.S. on that date. Dependent spouses and children do not need to demonstrate physical presence on December 21, 2000.

4. Do I have to adjust status in the same category that I was petitioned for?

Answer: No, provided you qualify to file under 245(i) as explained above.

5. I have a properly filed and approvable I-130 my sister filed for me before April 30, 2001. How about my children? Once they turn 21 years of age, they won't be entitled to any benefits based on this petition, will they?

Answer: Your children are considered to be "derivative beneficiaries" of the I-130, if the child relationship existed at the time your sister filed the I-130. This entitles not only you, but your children as well to the benefits of 245(i). Even if one of your children turns 21 or marries, your children will still be entitled to the benefits of §245(i) as they were "derivative beneficiaries" of a visa petition filed before April 30, 2001.

6. What happens if the employer goes bankrupt or withdraws my labor certification or visa petition? What is my labor certification was not approved? What happens if the relative who petitioned for me dies? Am I still eligible under 245(i)?

Answer: Yes, you are still eligible. Immigration utilizes an "alien based" interpretation of §245(i). If a labor certification or visa petition was properly filed and approvable when filed, you are entitled to the benefits of 245(i) even if the application/petition was never approved, was withdrawn, or the petitioner ceases to exist.

However, as stated before, filings that are deficient because they were submitted without fee, or because they were fraudulent or without any basis in law or fact, are not considered to be "approvable when filed" and confer no benefits under 245(i) .

7. If I qualify for benefits under 245(i), when will my eligibility for being able to adjust status in the U.S. expire?

Answer: There is no expiration. Once you qualify for benefits under 245(i), your eligibility never expires, and there is no restriction on the number of times an alien may properly seek to adjust status. However, you must have a visa number immediately available to you - CONSULT THE VISA BULLETIN or consult with a reputable attorney as to the right time to file under 245(i). The trick is that those aliens must be eligible to adjust. The law, 245(i), does not create a separate class of aliens who can adjust their status; rather, 245(i) only helps those who would be able to if they had not entered illegally or overstayed their visas. That means that the only people who can utilize 245(i) to adjust their status are the immediate relatives of U.S. Citizens, relatives who have current priority dates, or beneficiaries of an approved Labor Certification.



MARIA AGUILA
is a solo law practitioner who practices immigration law, adoptions, Fair Housing, landlord/tenant, and real estate. She is admitted in the Florida Bar and the U.S. Middle District Court of Florida. She is a member of American Immigration Lawyers Association, President of the Jacksonville Asian American Bar Association, and a member of the Jacksonville Asian American Alliance. She also teaches legal writing at Florida Coastal School of Law. She may be reached at 904-638-1338 or at mariadeg @ bellsouth.net.
 
 
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