To be "grandfathered" or preserve a person’s Section 245(i) eligibility, the following basic requirements must be met:
1. The person must have a family petition or Labor Certification Application "properly filed" on or before April 30, 2001;
2. The person must prove to the INS that he was "physically present" in the U.S. on December 21, 2000.
3. Note: For persons who had a family petition or Labor Certification Application filed on or before January 14, 1998, there is no requirement that the person be "physically present" in the U.S. on December 21, 2000. It is only for people who have family petitions or Labor Certification Applications filed on their behalf between January 15, 1998 and April 30, 2001, that the person be "physically present" in the U.S. on December 21, 2000.
Recently, I had a jumpship who came to my office, who had an employer who was willing to petition him for Labor Certification, in order that he could be "grandfathered" under Section 245(i). However, he arrived in the United States on January 5, 2001. Therefore, he was not "physically present" in the United States on December 21, 2000. Even though he had an employer willing to petition him, he would not be eligible for the benefits under Section 245(i).
How does a person prove that he was "physically present" in the U.S. on December 21, 2000?
On January 26, 2001, the INS issued a memorandum, setting forth the type of evidence needed to eventually show to the INS, to prove that the person was "physically present" in the U.S. on December 21, 2000. According to the INS’ recent memo, "an alien may demonstrate physical presence by submitting a photocopy of a Federal, State or Local Government-issued document that demonstrates the alien’s physical presence in the United States on December 21, 2000". These documents could include your I-94 (Arrival/Departure Record), driver’s license, or any other type of document issued by a Federal, State, or Local governmental agency, which would be on that governmental agency’s stationery, showing your name and address on the documents and be dated on or about December 21, 2000.
The INS memo further states that if the alien does not have a government-issued document demonstrating his or her physical presence in the United States on December 21, 2000, the INS should accept and evaluate non-government issued documents. "Such documentation must bear the name of the applicant, and have been dated at the time it was issued, and bear the seal or signature of the issuing authority (if the documentation is normally signed or sealed), be issued on letterhead stationery, or be otherwise authenticated". Non-government documents might be from banks, credit card companies, or other non-governmental agencies. The documents should have your name, be dated, and be on the entity’s letterhead, so that the document can be authenticated.
According to the INS, in some cases, a single document may suffice to establish the alien’s physical presence in the United States on December 21, 2000. However, INS anticipates that an alien will ordinarily need to submit several different types of documents to prove the physical presence requirement, such as "bank records that an applicant made a mortgage payment near or about December 21, 2000, such as making a mortgage payment on December 1, 2000, and again on January 1, 2001, would be acceptable". The INS further noted "the Service [INS] may not accept a personal affidavit of physical presence on December 21, 2000, without an interview or other additional secondary information that validates the affidavit".
In addition, I believe that the old "amnesty"regulations for Section 245A may also provide guidance on proving "physical presence" under Section 245(i). (Under Section 245A, a person was required to prove that he or she was "physically present" in the U.S. before January 1, 1982. The INS came up with regulations detailing the type of documentation to prove physical presence under that law. Perhaps when INS comes up with regulations for Section 245(i), INS will use the same type of evidence.)
As you can see, establishing "physical presence" in the U.S. on December 21, 2000, is critical in connection with a person establishing eligibility under the amended version of Section 245(i) (for those people filing family petitions or Labor Certifications between January 15, 1998 and April 30, 2001). Since it has only been a few weeks since December 21, 2000, you should still have most of these types of documents in your possession. Now is the time to gather and save them, so that you have this evidence ready when the time finally comes for you to "prove" that you were "physically present" in the U.S. on December 21, 2000. If you wait too long to gather these documents, you may run the risk of throwing them out by accident, etc.
Accordingly, when you go to an attorney in connection with beating the April 30, 2001 deadline, it is also important that you gather documents showing your "physical presence" in the U.S. on December 21, 2000. The attorney should be knowledgeable in being able to package and present your case to INS, showing your eligibility for a greencard, and proving your "physical presence" in the U.S.
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.)