You can recycle and re-use Sec. 245(i) – Part II - IMMIGRATION CORNER by Michael J. Gurfinkel

The April 30, 2001 deadline for people to avail of Section 245(i) is now in the history books. Tens of thousands of aliens took advantage of this law, by having family petitions or labor certification applications filed on their behalf before the deadline.

There have been several proposals to extend Section 245(i), but these are still bills in Congress, and are not yet law. We strongly support an extension of 245(i), and we urge all people to write to their Senators and Congressmen, urging an extension of Section 245(i).

In a previous article, I discussed some items which you may want to consider, if you already availed of Section 245(i). Here are more items to consider.

4. After-acquired spouses of the grandfathered alien are also grandfathered.

Many aliens who avail of Section 245(i) before the deadline will marry or have children after the qualifying family petition or labor certification application was filed, but before adjustment of status. These "after-acquired" children and spouses are also allowed to adjusts status (be interviewed for a green card in the US) under Section 245(i), as long as they acquired the status of a spouse or child before the principal alien ultimately adjusts status. For example, if a single person was sponsored for labor certification before the deadline, and, while the case is pending, he marries someone who is TNT, then that TNT spouse could also avail of Section 245(i), even though that newly-acquired spouse did not have a case filed on his or her behalf before the deadline. In other words, the newly-acquired spouse or children can later be "added on" to the original petitioned (or sponsored) alien’s Section 245(i) eligibility. In addition, the after-acquired spouse would not be required to have been "physically present" in the US on December 21, 2000. Only the original petitioned alien needed to be "physically present" in the U.S. (NOTE: Unmarried sons and daughters of green card holders should not get married, as that would void petition.)

5. Aged-out children continue to retain Section 245(i) eligibility, even after reaching 21 years of age.

Sometimes a parent is under petition, and he has a single child who is under 21 years of age. That child, of course, would also be covered under Section 245(i), and could adjust status along with the parent, provided that the child is still under 21 years of age at the time of the parent’s adjustment of status. However, if the child turns 21 before the parent adjusts status, the child is considered to have "aged out", and is no longer included in the parent’s case. Although the "aged out" child cannot be included under the parent’s case, the child retains his Section 245(i) eligibility, and if he could, perhaps, find an employee to petition him, he could use the Section 245(i) eligibility acquired while he was still under 21 through the parent’s case. This "aged out" child could also marry, and would continue to preserve his Section 245(i) eligibility.

6. A grandfathered spouse would retain Section 245(i), even after a divorce.

If a person is petitioned by an employer or family member, that person is, of course, grandfathered under Section 245(i). In addition, his or her spouse is also grandfathered. However, if, before the principal alien adjusts status, the couple gets divorced, the spouse would still retain Section 245(i), even though he or she is no longer the spouse, and no longer eligible to adjust under the sponsored alien’s petition. In that case, the divorced spouse could find an employer on his or her own, and be sponsored by their own employer for labor certification, long after the deadline.

As you can see, there are numerous advantages to Section 245(i), once you have been grandfathered. The fact – that 245(i) is transferable to a different case, and is retained even after various changes in circumstances – means that you should look for faster ways to obtain a green card.

If you have been grandfathered under Section 245(i) under a slow-family petition, you should consider finding an employer for labor certification. In addition, 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 transferability 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 Country 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.)