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245(i) Restored Temporarily!
by Valentine Brown

Overview: The new Section 245(i) allows certain people to become permanent residents without leaving the U.S. Eligible people have until April 30, 2001, to file an immigrant visa petition (an I-130, I-140, or I-360) with the Immigration and Naturalization Service (INS) or a labor certification application with the Department of Labor (DOL) in order to take advantage of this new provision. The new law also requires that persons who wish to take advantage of the new provision must have been in the United States on December 21, 2000, and be able to prove this fact to the INS, in order to benefit from the extension of the provision.

Background: The original Section 245(i) allowed people with approved visa petitions, who were out of status, to adjust their status in the U.S. upon payment of a fee of $1,000. Congress eliminated the original Section 245(i) on January 14, 1998. But before completely eliminating it, Congress provided that persons with visa petitions or a labor certification filed before January 14, 1998, would continue to be eligible for adjustment of status under 245(i). The newly enacted provision has the effect of extending the 1/14/1998 date to 4/30/2001. Therefore, anyone who has filed a visa petition or labor certification on or before April 30, 2001, will be eligible to adjust their status in the U.S., regardless of entering without a visa or overstaying their visa, as long as they pay the required $1000 penalty.

Without Section 245(i), out of status people needed to return to their home countries and complete the process for an immigrant visa at a U.S. consulate in their home country. However, if an applicant returned home to consular process, and they had been out of status in the U.S. for more than 180 days, they would be barred from reentering the U.S. for at least 3 years, and perhaps as long as 10 years. Under Section 245(i), an eligible individual can remain in the U.S. to obtain permanent residence through adjustment of status, and thus never trigger these entry bars. (Once permanent residence is obtained, these entry bars no longer apply.) So it is particularly important that people subject to the bars not leave the U.S. until they become permanent residents.

Who Benefits? The enactment of this new provision is extremely important for persons who entered the U.S. without a visa and have remained here illegally and for those persons who entered legally, but subsequently became illegal and remained in the U.S. more than 6 months beyond the expiration date of their admission. Persons in these situations will be able to obtain permanent residence if they file a visa petition or labor certification on or before April 30, 2001, and are otherwise eligible for a green card.

Physical Presence on December 21, 2000: Under the new law, beneficiaries of an immigrant petition or labor certification that is filed after the old deadline of January 14, 1998, but before the new deadline of April 30, 2001, must prove that they were physically present in the United States on December 21, 2000. People can prove compliance by submitting evidence of physical presence in the U.S. This evidence could include any receipts for December 21 that include the beneficiary's name, a letter from an employer or school, a hospital record or similar documentation.

Benefits and Limitations:

  • Applicants do not necessarily have to use the pre April 30, 2001, petition. This initial filing preserves the ability to adjust. Applicants can later submit a visa application in a different category when they become eligible for that category, but utilize the pre april 30, 2001, petition to secure their eligibility for adjustment of status.
  • Applicants must pay an additional fee of $1000 when they submit their adjustment of status application in order to take advantage of the new 245(i) provision.
  • 245(i) only allows people who illegally entered the United States or are out of status for various reasons to adjust their status in the U.S. if they are otherwise eligible. It does not authorize anyone to remain in the United States or to obtain work permission while here.

About The Author

Valentine Brown, LLC is an established law practice limited to Immigration and Nationality Law. We represent clients in proceedings before the Immigration and Naturalization Service, Department of Labor, Department of State and Executive Office for Immigration Review (Immigration Court). The firm represents corporate an individual clients in H, L, TN, and J Visa proceedings; Labor Certification and Permanent Residence; Extraordinary Ability and Outstanding Researcher Petitions; Family-Based Petitions; and Political Asylum Proceedings.

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