Section 245(i): A way for TNT’s in US to avoid US Embassy - IMMIGRATION CORNER by Michael J. Gurfinkel

Dear Atty. Gurfinkel:

I have been out of status in the U.S. for several years, and would like to find a way to get a green card. I have heard and read a lot about Section 245(i), and how it preserves a person’s future ability to adjust status, or be interviewed for a green card, in the U.S.

However, I have also heard that Section 245(i) does not necessarily put a person in immediate legal status, grant immediate work authorization, shield a person from deportation, allow them to travel outside the U.S., etc.

If Section 245(i) does not provide immediate immigration benefits, why should a person rush to avail of this law before it expires on April 30, 2001?

Very truly yours,
F.T.

Dear F.T.:

One of the most important features of Section 245(i) is it enables a person who is out of status to preserve his ability to eventually adjust status in the U.S., instead of having to go back to the U.S. Embassy in their home country for visa processing. Before Section 245(i) was enacted, a person who was out of status (TNT), worked without authorization, overstayed, etc., was not eligible to adjust status in the U.S. (There was an exception for "immediate relatives" [spouse, parent, minor child of U.S. citizen].) However, most other people under petition were required to go back to the U.S. Embassy for visa processing.) Under new laws that were enacted in 1996, if a person goes back to the U.S. Embassy for visa processing, it can be very dangerous. The reason is there is another law (aside from Section 245(i)) which states that if a person has been out of status in the U.S. for more than six months, and then "departs" the U.S. (even for visa processing at the Embassy), that person could be barred (or prohibited) from returning to the U.S. for 3 or 10 years. Therefore, if a person goes back to the U.S. Embassy for visa processing, it could mean that he may not be able to return to the U.S. for between 3 to 10 years.

Section 245(i) is a way by which a person could possibly avoid the 3/10 year bar, by preserving his future eligibility to adjust status in the U.S. Although Section 245(i) does not grant immediate immigration benefits (except for immediate relatives of U.S. citizens), it, nevertheless, preserves that person’s future ability to be processed for their green card (adjust status) in the U.S., as long as the person avails of Section 245(i) before its expiration on April 30, 2001. In order for a person to avail of Section 245(i), he must meet the following requirements:

He must have been physically present in the U.S. on December 21, 2000.

He must have a "properly filed" family petition or Labor Certification Application filed on his behalf on or before April 30, 2001.

In addition, the family petition or Labor Certification Application must have been "approvable at the time of filing". Remember, for family petitions, only certain family members can petition you. For Labor Certification, the job must be real, the employer must be financially stable and willing to pay the prevailing wage, and you must be qualified for the job.

If a person had a family petition or Labor Certification Application filed on their behalf on or before January 14, 1998 (under the original version of Section 245(i)) there is no requirement that the person had to have been "physically present" in the U.S. on December 21, 2000.

5. As long as a person has a "properly filed" family petition or Labor Certification Application filed before the deadline, the person could be considered "grandfathered" under Section 245(i) and would preserve his future ability to adjust status in the U.S. In addition, as long as a person has any properly filed family petition or Labor Certification Application filed before the deadline, INS will allow the person to transfer his Section 245(i) eligibility on to a new or different family petition or Labor Certification Application, which could be filed even after the deadline has passed.

The bottom line is that there are so many advantages to Section 245(i), that it is well worth your time and effort to avail of the law. Even though a person will not necessarily be put in immediate legal status (or will not immediately be shielded or protected from deportation/removal), Section 245(i) would still enable you to avoid the 3/10 year bar, which you could be subject to, if you were required to later depart the U.S. for immigrant visa processing at the U.S. Embassy. That is why I strongly advise that you immediately seek the advice of a reputable attorney, who can analyze your case, determine your eligibility for Section 245(i), and assist you in making sure that you have a "properly filed" family petition or Labor Certification Application which would be considered "approvable at the time of filing".

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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.)