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Section 245(i) is Not an Amnesty Program
by Cyrus D. Mehta

The new Latino Immigrant Fairness Equity Act (LIFE) provisions enacted on December 21, 2000, have caused a lot of confusion in the minds of people, especially 245(i). We wish to remind everyone that 245(i) is not an amnesty program.

245(i) only allows a person who is presently undocumented or out of status in the United States to ultimately apply for a green card in this country, as opposed to outside the U.S., if a labor certification application or an immigrant visa petition is filed by April 30, 2001. Without the benefit of 245(i), an individual who is undocumented but eligible for an immigrant visa must leave the U.S. for consular processing of the visa.

245(i) was part of the Immigration and Nationality Act until January 14, 1998. Before its expiration, the U.S. Congress created a compromise that would allow people to "grandfather" by filing a labor certification application or immigrant visa petition on or before January 14, 1998, which would subsequently allow them to apply for a green card in the United States by payment of a penalty of $1000. While thousands of people took advantage of this provision before January 14, 1998, many others were left out or fell out of status after that date.

LIFE extended 245(i) to April 30, 2001. Therefore, 245(i) would be able to "grandfather" pre-April 30, 2001 filings in the same way that it "grandfathered" pre-January 14, 1998 filings. The only difference is that the individual should have been in the United States on December 21, 2000, the date of enactment of LIFE. This cut off date precludes people from abusing the process by entering the country prior to April 30, 2001, in the hope of taking advantage of 245(i) and falling out of status.

The requirements of filing and approving a labor certification application or an immigrant visa petition remain the same. LIFE has not changed or accelerated processing times or visa number availability. An employer may file a labor certification application for a foreign employee who is taking up a position for which there are no U.S. workers available. The mere filing of a labor certification application prior to April 30, 2001, does not confer any immigration benefits for an undocumented alien. It is only when the labor certification application gets approved, after many months, and sometimes after years, and a subsequent immigrant visa petition also gets approved, can an individual apply for adjustment of status under 245(i).

An employment-based immigrant visa petition may also be filed on or before April 30, 2001, to qualify under 245(i). Most immigrant visa petitions can only be filed after the labor certification is approved, but in certain cases, an employment immigrant visa petition can be filed without labor certification. If the immigrant visa petition is based on an approved labor certification, then it is essential that the labor certification should have been filed on or before April 30, 2001, for purposes of qualifying the individual under 245(i).

An immigrant visa petition can also be filed by qualifying family members. A U.S. citizen can file on behalf of a spouse, single or married child, brother or sisters and parents. Spouses, minor children and parents of U.S. citizens who were initially inspected into the U.S. do not require the protection of 245(i) even if presently out of status. This group of people can apply under the regular adjustment provisions of the law without paying the $1000 penalty and regardless of the April 30 deadline.

A green card holder can also file an immigrant visa petition on behalf of a spouse, or a minor or adult single child. Again, the mere filing of a family-based immigrant visa petition in itself does not confer immediate benefits under 245(i). This individual still needs for the petition to get approved and the visa number under the preference category to become available before he or she applies for adjustment of status.

Therefore, 245(i) only gives one the ability to ultimately adjust status in the United States if a labor certification application or immigrant visa petition is filed by April 30, 2001, gets subsequently approved, and a visa number becomes available. 245(i) does not cure any grounds of inadmissibility such as criminal conviction or immigration fraud.

There are no other special benefits. The only benefit is that the undocumented individual may apply for a green card in the United States (aka adjustment of status) rather than proceed overseas to obtain an immigrant visa at a U.S. consulate. Many undocumented individuals face a 3 or 10-year bar against reentering the United States. If these people leave the United States, they will be barred for 3 or 10-year even if they were proceeding overseas to get an immigrant visa. Therefore, 245(i) gives an individual the ability to apply for the green card in the United States upon payment of a $ 1000 penalty if and only when a pre-April 30, 2001, filed labor certification application or an immigrant visa petition has been processed to its conclusion, and a visa number is available for the green card. Under certain conditions a pre-April 30 filed application or petition may also allow a person to obtain a green card in the U.S. through a post April 30 application or petition.

The LIFE Act also created a V visa for spouses and minor children of green card holders who have been waiting for more than 3 years, and the relative petition was filed on or before December 21, 2000. It also provides a new K-2 visa for spouses and accompanying minor children of U.S. citizens who are waiting overseas for their immigrant visa petition to get processed. Finally, LIFE allows people who filed under the late amnesty program of the 1980s, specifically under the CSS, LULAC and Zambrano law suits, to apply for a green card under certain conditions. As of date, the INS has not issued any regulations and nobody can yet take advantage of the V visa, K-2 visa or the 1980 late amnesty provisions.

We will keep you posted on further developments.


About The Author

Cyrus D. Mehta, a graduate of Cambridge University and Columbia Law School, practices immigration law in New York City. He is Vice Chair of the American Immigration Lawyers Association's National Labor Department Liaison Committee, trustee of the American Immigration Law Foundation and recipient of the 1997 Joseph Minsky Young Lawyers Award. He is also Chair of the Immigration and Nationality Law Committee of the Association of the City Bar of New York. He frequently lectures on various immigration subjects at legal seminars, workshops and universities and may be contacted at 212-686-1581 or info@cyrusmehta.com.



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