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< Back to current issue of Immigration Daily < Back to current issue of Immigrant's Weekly

Carl Shusterman Explains Section 245(i)
by Carl Shusterman

Let us try to explain section 245(I) as simply as possible:

Most persons obtain permanent residence either in the U.S. by a process called "adjustment of status" or at a U.S. Consulate abroad where they are issued an "immigrant visa."

Beginning in the 1970's, Congress placed a number of restrictions on qualifying for adjustment of status. In general, it is not available to persons who: (1) entered the U.S. without being inspected by an immigration officer (in most cases, they snuck across the border); (2) overstayed their authorized stay in the U.S.; or (3) violated their status in the U.S. (Example: by working on their tourist visa.) Although there are certain exceptions to this rule (Example: "Immediate relatives" of U.S. citizens may adjust status even if they overstayed or violated their status.), most of these people are ineligible for adjustment of status in the U.S., and must return home to apply for an immigrant visa at a U.S. Consulate abroad. Are you with me so far? Good!

This worked fine until 1997 when a law passed by Congress the year before became effective. The law provides that a person who was "unlawfully present" in the U.S. for over 180 days, or over one year, after April 1, 1997, is barred from reentering the U.S. for three years or ten years, respectively. Waivers of the bars are available where the person can prove their U.S. citizen or permanent resident spouses or parents would suffer "extreme hardship" if they were not allowed to return to the U.S. This proved to be a major disincentive to leaving the U.S. even to apply for an immigrant visa abroad. Still with me? Okay.

Fortunately, for everyone, Congress had already enacted section 245(I), which took effect on October 1, 1994.

*** Section 245(I) simply allows a person who is eligible for a green card and who is present in the U.S., but who would otherwise be ineligible to adjust his status, to pay a $1,000 fine and do so.***

That's all there is to it! It's not an amnesty, doesn't protect illegals from deportation, doesn't provide you with a work card, and doesn't speed up your green card.

Then why is it so important? To simplify: Congress ended the first section 245(I) on January 14, 1998. However, most persons with either labor certifications or either employment-based or family-based visa petitions filed by that date remain 245(I)-eligible. If you are 245(I)-eligible, can you immediately apply for a green card? No! You must wait until your priority date is "current" (See http://shusterman.com/vb.html) before you can apply for adjustment of status. When you apply for adjustment of status, you can also apply for a work permit, but probably not for a travel permit (Remember the three and ten-year bars? They still apply until you become a permanent resident.)

What if you missed the January 14, 1998 deadline? You, and hundreds of thousands of other people, were out of luck. If you could not adjust status either because you entered the U.S. illegally or you overstayed your visa, you probably could not return home to get your green card because of the three and ten-year bars. You were in a "Catch-22" situation!

That all ended on December 15, 2000 when Congress reauthorized section 245(I). The new law, however, has a couple of catches. One, to qualify for the new section 245(I), you have to prove that you were in the U.S. on the day that the President signed the law. This occurred on December 21, 2000. Two, your (potential) employer or your relative must file an application or a petition by April 30, 2001 for you or your spouse to qualify for a green card.

I think that a few of you are still not 100% clear about section 245(I), so let me give you a few examples of how section 245(I) works:

EXAMPLE #1: The wife is a U.S. citizen. The husband entered the U.S. illegally across the Mexican border more than one year ago. Normally, the husband would not only have to return to Mexico to apply for an immigrant visa, but would have to get a waiver to avoid the ten-year bar to return to the U.S. Although most waivers are granted, the husband would be forced to wait in Mexico for 10 to 12 months while the INS approved his waiver. Our law firm represents a couple in Ohio with a case exactly like this one. The husband was supposed to fly to Mexico on December 16, apply for his green card, and be separated from his wife for approximately one year. However, as soon as Congress passed the section 245(I) amendment on December 15, we called him and told him to cancel his flight. We are now applying for adjustment of status and a work permit for him. Paying $1,000 to the INS is a small price for being able to remain together with his wife.

EXAMPLE #2: Raj is a computer programmer in his third year of college in Georgia. Unfortunately, he is not in legal status. When he finishes school, he will not be able to go abroad (not even to Canada or Mexico) to obtain an H-1B visa because he is subject to the 10-year bar. However, Raj's wife's sister is a U.S. citizen. She has never bothered to apply for Raj's wife because the waiting time from sister-to-sister petitions for persons born in India exceeds 12 years. Last week, we prepared and submitted a visa petition for Raj's wife. Since we did so before April 30, 2001, this made both Raj and his wife 245(I)-eligible. So what, you say, who wants to wait 12 years to get a green card?

The solution to this is for Raj to have a potential employer sponsor him for permanent residence after he graduates in June 2002. But since this will be after April 30, 2001, won't that be too late? Not at all. Raj is 245(I)-eligible because his sister-in-law's petition was filed (although not approved) by April 30, 2001. Once the petition is filed, Raj became 245(I)-eligible for LIFE. This is true even if his sister-in-law has a change of heart and withdraws the petition prior to approval. It's true even if (God forbid!) Raj's wife dies or they are divorced (and remarry) before the approval of the petition.

EXAMPLE #3 - Let's assume that you visited the U.S. on the Visa Waiver Program and spent the month of December 2000 here. At this time, you have no intention of remaining in the U.S. However, your spouse's parents live in the U.S., and they prepared and submitted a visa petition on her behalf during January 2001, just because they read our "Section 245(I) FAQ".

In the year 2006, you and your wife are both living and working in the U.S., quite illegally. The visa petition filed in January 2001 is nowhere near current. In desperation, you apply for the green card lottery and win!

Normally, because you are illegally in the U.S., you are ineligible for adjustment of status. You can't go home to apply for a green card because you are subject to the 10-year bar. What do you do? You can adjust your status under the lottery by paying a fine since the petition filed in 2001 made you 245(I)-eligible for life!

Got it? I hope so! If you think that you may be able to establish 245(I) eligibility by April 30, 2001, see http://shusterman.com/intake.html and no matter where you live in the U.S., we will be glad to assist you in qualifying under this wonderful section of the law. Don't wait too long. The clock is ticking!


About The Author

Carl Shusterman is a certified Specialist in Immigration Law, State Bar of California
Former U.S. Immigration & Naturalization Service Attorney (1976-82)
Board of Governors, American Immigration Lawyers Association (1988-97)
Phone: (213) 623-4592 Fax: (213) 623-3720
Law Offices of Carl Shusterman, 624 So. Grand Ave., Suite 1608
Los Angeles, California 90017
http://www.shusterman.com


Copyright 2000 by Carl Shusterman. Reprinted with Permission.


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