Frequently-asked questions (FAQ’s) about section 245(i) - IMMIGRATION CORNER by Michael J. Gurfinkel

On December 21, 2000, the President signed into law the Legal Immigration and Family Equity Act (LIFE Act), which 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 for a green card) 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.

Before Section 245(i) came into effect, most of these people were ineligible to adjust status in the U.S., and had to go back to their home country to be processed at the Embassy for their immigrant visa. Section 245(i) originally expired on January 14, 1998, but was recently extended again until April 30, 2001.

If you are in the U.S., this law may be of tremendous benefit to you. If you are outside the U.S., but have friends or relatives in the U.S., you may want to tell them about this new law before the deadline.

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

15. I am a college graduate, but am now working as a caregiver.

I don’t have any family members who could petition me, and I don’t think that I can find an employer for a skilled or professional position before the April 30, 2001 deadline. What can I do to avail of Section 245(i) before the April 30, 2001 deadline? If your present job is real (versus "fixed" or "fake"), your present employer could petition you before April 30, 2001, even though it’s an "unskilled job", such as a caregiver. Then, you would "preserve" your eligibility under Section 245(i). If you later find an employer who would petition you in a skilled or professional job (where the processing time is a lot faster), the new employer could sponsor you, and you would be able to "transfer" your Section 245(i) eligibility onto the second employer’s case, to enable you to later adjust status on that "faster" Labor Certification. (INS allows you to transfer your Section 245(i) eligibility onto a new or different petition or Labor Certification Application, which could be filed after the deadline, as long as you had any properly filed family petition or Labor Certification Application filed on your behalf before the April 30, 2001 deadline.)

16. I have a sister who is a U.S. citizen. If she petitions me, it could take 20 or more years before I would be eligible to adjust status under her petition. Is there any advantage to having her file her petition for me before the April 30, 2001 deadline? Yes. By having your sister file her petition before the April 30, 2001 deadline, you would have "preserved" your Section 245(i) eligibility (or would be "grandfathered" under Section 245(i)). Once you are "grandfathered" under any kind of properly filed family-based petition or Labor Certification Application, you could thereafter find a faster way to obtain a green card (such as through Labor Certification) and transfer your Section 245(i) eligibility from your sister’s petition (which was filed before the April 30, 2001 deadline) onto the faster petition (which may have been after the deadline expired). Remember, as long as you had any properly filed family petition or Labor Certification Application filed on your behalf before the April 30, 2001 deadline, you are "grandfathered", and you have preserved your Section 245(i) eligibility forever.

17. Why is it important to hire an attorney to avail of Section 245(i)? Section 245(i) requires that your family petition or Labor Certification be timely filed, properly filed, and "approvable when filed". If you mess up on any of these items, you could miss the deadline, and not be able to avail of Section 245(i). Why risk missing the deadline and be sent back to your home country for visa processing, when you can be interviewed in the U.S.?

18. What does it mean that the case must have been "approvable at the time of filing"? In order for a family petition or Labor Certification Application to be "approvable at the time of filing" for purposes of grandfathering, the family petition or Labor Certification Application must meet all applicable legal requirements for filing. Cases that are deficient because they were submitted without fee, or because they were fraudulent or without any legal basis in law or fact, would not be considered "approvable at the time of filing", and would not be considered to have "grandfathered" the alien. For example, if you had a cousin file a family petition on your behalf, that would not be "approvable at the time of filing", because a cousin cannot petition another cousin. If a husband petitions his wife, but she is still married to another man, this also may not be "approvable at the time of filing", as the second marriage would have been bigamous and void. Or, if a person is being petition in a college-level job, but used a fake diploma, this may also not be "approvable at the time of filing", because the alien would not have been qualified for the job, and it would involve fraud.

That is why it is important to have an experienced attorney assist you in connection with reviewing the case, making sure it is timely and properly filed, as well as "approvable at the time of filing". Remember, the case does not have to actually be approved prior to the deadline. The law requires only that at the time it was filed, it could have been approved, because it had met all the legal and factual requirements as of the time it was filed.

19. What happens if a family petition or Labor Certification is filed on my behalf, but the petitioner later dies or goes out of business. Would I still be grandfathered?

As long as the case was properly filed and "approvable when filed", the alien would still be grandfathered, even if the case was later denied, revoked, withdrawn by the petitioner, or the petitioner goes out of business, dies, etc. The key is that, at the time of filing, it was "approvable" when filed.

20. I don’t have an employer, but my wife has an employer who is willing to petition her. Will I also be covered under Section 245(i) if my wife’s employer petitions her?

Yes. Not only is the person who was directly petitioned (Principal Beneficiary) grandfathered under Section 245(i), but also that alien’s spouse and children under 21 years of age (Derivative Beneficiaries). Therefore, if your wife’s employer files a petition for her before the April 30, 2001 deadline, you (and any of your children under 21 years of age) would also be grandfathered. Once a derivative beneficiary (spouse or minor child) is grandfathered, they would continue to be eligible to adjust status under Section 245(i), along with the principal alien. Or, they could even adjust status on their own, through a new or different petition. For example, if your child turns 21 years of age and ages out, and she later finds an employer to petition her, she can transfer her Section 245(i) eligibility. Derivative beneficiaries still remain grandfathered under Section 245(i), even if they find a new or different way to adjust status after the deadline, such as being petitioned by their own employer, marrying, etc.

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.)