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Limited Restoration of 245(i)
by Arthur L. Zabenko, Esq.

One of the most important immigration measures in the recently signed omnibus spending bill is the limited restoration of 245(i). As a general rule a person can only adjust (i.e. change from nonimmigrant to immigrant status) in the United States if he is in status. Otherwise, a person must apply for an immigrant visa at a US consulate. There is a catch. A person who has been in the United States without status for more than 180 days is subject to a three year bar to admission once he leaves even if otherwise eligible for a visa. Someone who has spent a year here without status is subject to a ten year bar.

For several years there was a provision of law known as 245(i) which allowed people who were otherwise eligible for permanent resident status to pay a $1000 penalty fee and adjust without leaving the US instead of having to apply at a consulate abroad. In late 1997 Congress decided to phase out 245(i). They changed the law so that only those who were the beneficiary of a labor certification or immigrant visa petition filed before January 15, 1998, were eligible. This resulted in the breakup of families as people were faced with the decision of leaving in the hopes that a petition would be filed for them and they would not be subject to the 3/10 year bar, or staying and risking never being able to adjust their status.

The recently passed omnibus appropriations bill contains a limited restoration of 245(i). Under the limited restoration a person who is eligible for an immigrant visa and for whom a visa is currently available can apply for adjustment in the US instead of having to apply at a consulate abroad if he is the beneficiary of a petition for an immigrant visa or application for labor certification filed before April 30, 2001, and physically present in the US as of December 21, 2000. Those who take advantage of 245(i) will have to pay an extra $1000 fee at the time they apply for adjustment of status. The physical presence requirement on a certain date was not previously a part of 245(i), so it is not absolutely clear what evidence of physical presence the INS will require. Where physical presence is required in others areas of immigration law the INS has accepted receipts made out to the individual in the US, correspondence addressed to the individual at a US address, school attendance records and affidavits as evidence. If the physical presence is going to be an issue gather and save the evidence now so it will be available when needed.

The recent changes to and shifting deadlines of 245(i) make it confusing to determine if the provision applies in any particular case. Those who think they are eligible should consult a knowledgeable immigration attorney. Unfortunately, whenever there is confusion there are unscrupulous people who will take advantage of it to prey on others. What is at stake here is not just the money, but a person's eligibility for a green card versus being subject to a 3/10 year bar. The best protection against being swindled is to educate yourself. Adding to the confusion is a separate addition to the immigration laws which authorizes the Attorney General to set up expedited processing of certain petitions for a $1000 fee. The $1000 245(i) fee and the $1000 expedited filing fee are completely separate things. If someone tells you that the INS will process your 245(i) case more quickly for an extra $1000, beware!

About The Author

Arthur L. Zabenko, Esq., is editor of Immigration Daily and Immigrant's Weekly. He was previously employed at Lubiner and Schmidt where he handled all types of immigration cases specializing in employment, family and asylum issues.