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The Nuts and Bolts of 245(i)
by Brian D. Lerner

Question: I have read a great deal on this new 245-i law. However, I am still unclear how it affects me and what I need to do to fall under the law. Could you explain?

Answer: Yes, there is confusion around this law. It is imperative to understand how the law works so that you and your friends can take advantage of the law.

You can take advantage of this law in two distinct and different ways. First, if you have any close relatives in the United States, they may be able to petition you. Therefore, please let me know what family you have in the United States.

Question: I have a U.S. Citizen sister, an 18-year-old U.S. Citizen daughter and an uncle. However, I have heard that it takes up to twenty years to get the Green Card if my sister petitions me. Since the deadline on this law is only a few months away, how can my sister help?

Answer: You are correct that it will take about twenty years for a visa number to become current if your sister petitions you. However, the critical and important fact to remember is NOT WHEN YOU ARE ELIGIBLE TO FILE FOR THE GREEN CARD, BUT WHEN THE INITIAL FAMILY PETITION WAS FILED. Therefore, if your sister petitions you prior to the end of April, 2001, you will fall under the provisions of 245(i). Your uncle cannot petition you since there is no category under the immigration laws for an uncle to petition a niece or nephew. Your daughter cannot petition you until she turns 21 years old.

Keep in mind that you will most likely not wait twenty years to obtain your Green Card. Rather, you are doing what you must to get under 245(i). Afterwards, when your daughter turns 21 years old, she can petition for you. Since you would have had your sister petition prior to the deadline, the new petition from your daughter three years from now will allow you to immediately adjust your status and get your Green Card.

Question: While I am lucky to have a U.S. Citizen daughter, I have friends who do not have a U.S. Citizen relative. How can they take advantage of 245(i)?

Answer: They can fall under 245(i) by using a future employer, rather than a family member. They can have an employer petition them. This procedure is known as Labor Certification. It takes a few years to get a Labor Certification, but if filed immediately, the new law will allow them to eventually adjust your status and to obtain your Green Card.

Remember, it is not when your friend would get their Green Card that is important, but WHEN THE LABOR CERTIFICATION IS FILED.

Question: What type of position would be eligible for a Labor Certification?

Answer: You friend should look for an employer who will sponsor them for a position, which they have at least two years of experience. However, if that is not possible, we can file a Labor Certification on their behalf for a position that they have less than two years experience. It will take longer to obtain the Green Card, but your friend can eventually get their Green Card.

To obtain the Green Card based upon a Labor Certification involves three distinct steps. First, you must obtain the Labor Certification. Second, you must file what is known as the I-140 petition. This tells the Immigration and Naturalization Service that you are eligible for the position, which is the subject of the Labor Certification. Finally, the third step is the Adjustment of Status phase. This step allows you to obtain your Green Card.

Question: Once I get either the family based petition or the Labor Certification filed, am I safe from deportation?

Answer: Unfortunately, there is nothing in the law, which prohibits the Immigration and Naturalization Service from putting you in removal proceedings and trying to deport you. However, if filed properly and immediately, you could be represented in removal proceedings in such a manner that you would eventually be able to have the judge in Immigration Court order that your status be adjusted to that of a Lawful Permanent Resident.

Question: Will I have to leave the United States once I file the necessary petition?

Answer: No. The whole purpose of 245(i) is so that you do not have to leave the U.S. Rather, you can stay in the U.S. and eventually adjust your status to get the Green Card. If you leave the U.S., you are most likely subject to the 3/10-year bar, which will prohibit you from coming back to the U.S. for up to 10 years, even if you filed the necessary petition.

Even if you are here legally and in status, you might want to strongly consider getting the necessary petition filed to fall under 245(i). While it is never recommended that you go out of status, you never know what will happen in the future. Therefore, for insurance purposes, even if you are in legal status, it would be a good idea to get under 245(i). You could even leave the U.S. after filing the petition and later come back to the U.S. and adjust your status to that of a Lawful Permanent Resident.

Question: I have a friend that is outside the U.S. Can he get under 245(i)?

Answer: No. Only if your friend was in the U.S. on December 21, 2000, will he be eligible to fall under 245(i).

As you can see, there are many wrinkles to 245(i). However, if you walk away with only one piece of information, it should be the following: Contact a knowledgeable attorney to get the necessary petition filed before the end of April, 2000. We never know when this chance, if ever, will come about again. Do not be one of the millions of people on May 1, 2001 who will miss the chance to get under 245(i) and either have to remain illegally in the U.S. forever, or leave the U.S. and be subject to the 3/10 year bar.

This could be a once in a lifetime opportunity, so you must take advantage of it. The new law will not remain in effect for much longer, so you must get a sponsor immediately. Otherwise, you will remain out of status with little hope of ever getting the Green Card. President Clinton has given you a great opportunity.

About The Author

Brian D. Lerner is a Certified Specialist in Immigration Law by the State Bar of California, Board of Legal Specialization. He has passed a rigorous examination and extensive experience requirements by the State Bar of California, Board of Legal Specialization. He can handle the most difficult of immigration cases arising from business visas, work permits, Green Cards, non-immigrant visas, deportation, citizenship, appeals and all other areas of immigration. He received his Bachelors of Science Degree in Business Administration, with an emphasis on Computer Information Systems, from the University of Southern California. He graduated from the University of the Pacific with a Juris Doctorate degree.

Mr. Lerner has prepared business visas for individuals from South Africa, England, Philippines, Mexico, China, Taiwan, Israel, Russia, Egypt, Australia, France and other countries. His visa experience extends to Treaty Traders, Treaty Investors, Intercompany Transferees, Speciality Occupations, Training programs, and NAFTA visas. He has extensive experience in most all other types of visas issued.

In addition to his visa experience, Mr. Lerner has prepared Multinational Manager, National Interest Waiver and Extraordinary Alien petitions for highly qualified foreigners.

Mr. Lerner is frequently present in immigration court, representing individuals in deportation, removal, waiver asylum, withholding of removal and adjustment of status hearings. He has prepared numerous appellate briefs to the Board of Immigration Appeals and other appellate boards at the Immigration and Naturalization Service. He has appealed and argued cases in the Ninth Circuit Court of Appeals. He is a member of several United States District Courts, the Ninth Circuit Court of Appeal and the California Supreme Court.

Mr. Lerner lives with his family in Los Angeles, California. He is a first degree black belt in Goju Karate.

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