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Employer Information Bulletin 99-25               LIFE Act/245(i) Adjustment (2/01)

UNITED STATES DEPARTMENT OF JUSTICE
IMMIGRATION AND NATURALIZATION SERVICE

Office of Business Liaison

Public inquiry: Employer hotline:800-357-2099 Fax:202-305-2523
E-mail office.business.liaison@usdoj.gov
Public info: Fax-on-demand:202-514-2033 Order INS Forms:800-870-3676
Website www.usdoj.gov/ins/

Adjustment of status under Section 245(i) in Context of the Legal Immigration and Family Equity Act (enacted 12/21/00)

Adjustment of Status

Immigration and Nationality Act (INA) Section 245(a) permits change of an alien's immigration status in the United States (US) from nonimmigrant (temporary) to immigrant (permanent) if the alien was properly admitted or paroled into the US. The term for a change from temporary to permanent status is adjustment of status. The term change of status refers to a change from one temporary classification to another.

For most aliens other than Canadian visitors or visitors with Border Crossing Cards, admission or parole is reflected on the Form I-94 Arrival-Departure Record issued by an INS inspector to every alien who enters the US. INA 245(c) lists classes of aliens who are not eligible to adjust under 245(a), which include aliens who entered the US illegally, have worked in the US without authorization (or with expired authorization), and/or have failed to maintain status following entry.

Aliens who are ineligible for adjustment are not necessarily ineligible to become permanent residents of the US. However, they may not obtain permanent residence while maintaining physical presence in the US. They must leave the US and process their immigrant visas through US consulates abroad. In other words, there are two alternative methods to obtain immigrant status in the US -- through adjustment of status if the alien is already in the US and wants to remain in the US during the processing period or through consular processing if the alien will obtain the immigrant visa at a US consulate.

History of Section 245(i)

In 1994, Congress enacted INA Section 245(i), which permitted aliens who were otherwise ineligible for adjustment to pay a $1000 penalty fee for the convenience of adjusting status without leaving the US. The 245(i) provisions terminated on January 14, 1998. After that date, INS accepted applications only from certain aliens grandfathered under 245(i). Only beneficiaries (the beneficiary is the alien named in the application or petition) of labor certifications or immigrant visa petitions filed by January 14, 1998, were grandfathered.

Section 245(i) grandfathers aliens themselves rather than the applications or petitions filed for them. That is, the basis of a grandfathered alien's eventual adjustment is not restricted to the application or petition filed to preserve adjustment eligibility. The grandfathered alien's application for adjustment of status may be based on any adjustment provision available to the alien at the time of adjustment. Example: A Form ETA-750 filed before January 14, 1998 preserved the beneficiary's eligibility to adjust status after that date. However, the filed ETA-750 did not commit that alien to adjustment on the basis of an employment-based petition. If, after January 14, 1998, the alien was named as beneficiary in a family-based petition or won an immigrant visa in the diversity lottery, he or she was permitted to adjust status on the new basis.

Relationship of 3- and 10-year bars to admissibility on Section 245(i)

The Illegal Immigration and Reform and Immigrant Responsibility Act (IIRIRA) enacted in September 1996 provided that an alien who accumulates between 6 months and 1 year of unlawful presence in the US after April 1, 1997, becomes inadmissible for 3 years if he subsequently leaves the US. Even if an alien who had become subject to a bar were to obtain a visa at a consulate abroad (permission to travel to the US and apply for admission under the classification indicated on the visa), he or she would not be admitted into the US upon arrival. Similarly, an alien who accumulates one year or longer of unlawful presence becomes inadmissible for 10 years.

IIRIRA's bars to admission were critical to the permanent residence process for the following reason. Following the January 1998 expiration of 245(i), it became impossible for an alien to adjust status in the US if he was unlawfully present (e.g. due to overstay past the Form I-94 expiration date or to breach of terms and conditions of status). The same person, however, was also ineligible for consular processing if he had accumulated sufficient unlawful presence for the 3 or 10 year bar to apply (i.e. for duration of the applicable bar).

LIFE Act and 245(i)

The Legal Immigration and Family Equity (LIFE) Act, enacted on December 21, 2000, temporarily revived Section 245(i) by replacing the original eligibility cut-off date of January 14, 1998, with a new date of April 30, 2001. This means that any beneficiary of a labor certification application or immigrant visa petition filed by April 30, 2001, is now eligible to adjust status under INA 245(i) upon payment of the $1,000 surcharge, regardless of the timing or basis of the eventual adjustment. The $1000 penalty fee is payable at the time of adjustment rather than at the time the "grandfathering" petition or application is filed.

LIFE made one significant change to the eligibility requirements, adding a requirement that the alien beneficiary be able to prove "physical presence" in the US on the day of enactment, December 21, 2000. Otherwise, the 245(i) requirements and entitlements are the same as described above. It is uncertain at this time what evidence will be required or accepted to satisfy the physical presence requirement. Note: Some 245(i) applicants grandfathered before January 14, 1998, have still not filed for adjustment, yet remain eligible until their permanent residence petitions are approved and immigrant visas are available. These aliens will not be required to satisfy LIFE's December 21, 2000, physical presence requirement.

Qualifying filings

Labor certifications or petitions filed in order to preserve an alien's adjustment eligibility under 245(i) must be approvable on the date of filing. To meet this test, the filing must be timely and meet all applicable substantive requirements. Deficiencies such as lack of fee or original signature will disqualify the submissions. Any filing that is fraudulent or without basis in law or fact will similarly not qualify.

Petitions which have been denied or withdrawn, or for which approval has been revoked by INS, may still serve to grandfather the alien beneficiary, depending on the reasons for the final action. The determinative issue is whether the visa petition is approvable when filed. To remain eligible, the changed circumstances must relate to factors beyond the alien's control rather than to the merits of the petition at the time of filing.

In the event that an employer applicant for a labor certification or petitioner for employment-based permanent residence dies, goes out of business, or otherwise chooses to withdraw or becomes ineligible to maintain the application or petition, or the family member who filed the petition dies or is divorced from the beneficiary, the alien beneficiary does not lose grandfathered status as long as the qualifying filing was approvable at the time of filing.

What and how to file

Any of the following may be filed by April 30, 2001, to preserve the beneficiary's adjustment eligibility:

Family-based permanent residence: Form I-130 may be filed by a qualifying family member of the alien who is a citizen or permanent resident of the US. This form may be ordered toll-free at 800-870-3676 or downloaded from INS' website at http://www.ins.usdoj.gov/.

Employment-based permanent residence: Form I-140 may be filed by a US employer who has offered the alien beneficiary permanent employment in the US. Most petitions for permanent residence based on a job offer require labor certification in order to be approvable (this refers to the actual certification by US Department of Labor -USDOL-- rather than to mere filing of Form ETA-750). Form I-360 for a religious worker also meets this requirement. These forms may be ordered toll-free at 800-870-3676 or downloaded from INS' website at http://www.ins.usdoj.gov/.
Labor Certification: To obtain labor certification, an employer and a foreign national employee together submit a completed application Form ETA-750 (typically available from state departments of employment services or from the USDOL website at http://workforcesecurity.doleta.gov/foreign/documents.asp) together with documentary evidence to the state DOL. The time required to obtain a labor certification can range from several months to two years, depending on the location of the job (New York, California and Illinois are particularly backlogged). For more information about labor certification, see below.

Confusion of LIFE provisions with "Amnesty"

Many aliens and others mistakenly believe that 245(i) constitutes amnesty, i.e. forgiveness of their unlawful presence or breaches of status. On the contrary, unlawful presence continues to accrue until application for adjustment of status is filed (which will have the effect of placing the alien applicant in lawful status). 245(i) does not protect an alien from deportation. Accordingly, an alien who continues to work without authorization may remain eligible to adjust status if and when permanent residence is approved and an immigrant visa is available, but may be removed from the US if discovered in the meantime. Furthermore, a US employer who files Form ETA-750 or Form I-140, naming an alien without work authorization as beneficiary, will be subject to sanctions if discovered to be knowingly employing that alien before he or she becomes eligible for adjustment. Once application for adjustment is made, the alien becomes eligible for work authorization. This may take many months or years, however, from the time that the qualifying 245(i) application or petition is filed.

Impact on dependents of grandfathered aliens

A dependent spouse or child who is accompanying or following to join a grandfathered alien is also considered grandfathered by the qualifying petition or labor certification if the relationship existed or comes to exist before the principal alien eventually adjusts status. Only the principal beneficiary of a visa petition or application for labor certification filed after January 14 1998, and on or before April 30, 2001, needs to demonstrate physical presence in the US on December 21, 2000.

THE PERMANENT RESIDENCE PROCESS IN A NUTSHELL

Family-based: The US citizen or permanent resident relative files INS Form I-130, naming a qualifying relative (such as a spouse) as beneficiary and providing the required proof of the relationship. The form will contain specific instructions for filing. Typically, Form I-130 is filed together with INS Forms I-485 application for adjustment of status, I-864 Affidavit of Support, I-765 for employment authorization and I-131 for advance parole to allow travel outside the US during the adjustment period. This packet of completed forms is filed at the INS field office nearest to the residence of the petitioning relative. Form I-485 is not processed until Form I-130 is approved, which may account for a delay of two or more months until Form I-765 and I-131 processing gets underway. In some offices, family-based beneficiaries are issued employment authorization documents at the field office. In others, I-765 applications are forwarded to the INS Service Center with geographic jurisdiction over the petitioner's place of residence. Service Center processing of I-765 and I-131 applications typically takes at least 90 days. The family-based beneficiary, who actually becomes the applicant for adjustment, work authorization, and advance parole, is not work authorized until the employment authorization document (Form I-688B or Form I-766) is received. When the I-485 application for adjustment is adjudicated, which could take up to two years but varies case by case, the applicant will be called into the INS field office for an interview. A decision will be subsequently communicated to him or her. If the decision is positive, an appointment will be made to have an "I-551 stamp" placed in the alien's passport. The I-551 stamp is meant to establish proof of the alien's permanent residence and unrestricted employment eligibility until the actual Permanent Resident Card (Form I-551) is processed (approximately one year). Aliens approved for permanent residence on the basis of marriage are granted conditional residence for two years, after which another interview takes place for determination of whether the marriage is bona fide. If a positive determination is made, the conditions on permanent residence are removed and the alien obtains unrestricted permanent residence and a Permanent Resident Card valid for ten years.

Employment-based: If the alien beneficiary is a religious worker, Form I-360 is filed. For other types of employees, Form I-140 is filed. Both forms are filed with the INS Service Center with geographic jurisdiction over the place of employment. Both forms contain complete instructions. Form I-360 and Forms I-140 for certain beneficiaries do not require labor certifications (for a complete explanation of the exemptions, ask for Employer Bulletin 99-14). Form I-140 in the cases of most beneficiaries do require labor certification. These Forms I-140 will not qualify under Section 245(i) to preserve the alien beneficiary's eligibility for adjustment unless they are filed with the labor certifications (certified by USDOL - a copy of the application to USDOL is not sufficient). Labor certifications may take two years or longer to process, particularly in backlogged areas such as New York, Illinois, and California). The Form I-140 itself takes up to six months to process, on a case by case basis, depending upon backlogs at the INS Service Center where it is filed as well as the completeness of the petition and supporting documentation. Where deficiencies are found by Service Center adjudicators, requests for evidence (RFEs) are issued and typically result in processing delay. Once Form I-140 is approved, the alien beneficiary becomes eligible to file for adjustment provided that an immigrant visa is available. If an immigrant visa is not available, application for adjustment cannot be filed. Once the I-140 is approved and an immigrant visa is available, Form I-485 application for adjustment may be filed, along with Form I-765 application for employment authorization (for one year at a time for the duration of the adjustment process) and Form I-131 Application for advance parole to permit travel abroad during the adjustment process. Form I-765 applications for employment-based applicants are filed at INS Service Centers and take 90 days or longer to process. The alien does not become employment authorized until the employment authorization document is received.

LABOR CERTIFICATION

Labor certification is a statement from the US Department of Labor (USDOL) that a particular position at a particular company is "open" because no US workers who satisfy the minimum requirements for the job are available. An alien seeking to immigrate to the US on the basis of employment must obtain an offer of permanent full-time employment from an employer in the US. Such alien cannot be admitted as a permanent resident unless, among other things, the employer obtains a labor certification from USDOL that qualified US workers are not available for the employment offered to the alien, and that the wages and working conditions offered will not adversely affect those of similarly employed US workers.

The labor certification process requires the employer to recruit US workers at prevailing wages and working conditions through the State Employment Service, by advertising, posting notice of the job opportunity, and other appropriate means. A USDOL regional certifying officer makes a decision to grant or deny the labor certification based on the results of the employer's recruitment efforts and compliance with USDOL regulations. Most employers of unskilled workers, skilled workers, and professional workers need to obtain labor certification before petitioning INS for permanent residence for those workers based on employment. Exceptions exist for aliens in shortage occupations (registered nurses, physical therapists, sheep herders and those demonstrating "exceptional ability" in business, science, or arts), aliens demonstrating to INS that they possess extraordinary ability, aliens who are multinational executives or managers, aliens whose work is deemed in the "national interest," and aliens who are outstanding university and college teachers and researchers in tenure-track jobs. Petitions naming beneficiaries who hold such positions, which are considered unique and therefore do not displace American workers, do not require labor certification.

To obtain labor certification, an employer and a foreign national employee together submit a completed application Form ETA-750 (typically available from state departments of employment services or downloadable from the USDOL website at http://workforcesecurity.doleta.gov/foreign/documents.asp) together with documentary evidence to the state DOL. The state DOL confirms that the wage offered for the position is the "prevailing wage" and informs the employer whether the salary must be increased to satisfy prevailing wage requirements. The state DOL then approves an advertising strategy and sends the application to the local DOL. At the local DOL office, the job is listed as "open" in the state computerized job bank and the employer is instructed to place an ad in a specified journal or newspaper. The ad will ask applicants for the position to apply directly to the local DOL. The local DOL screens applicants and refers seemingly qualified applicants to the employer. The employer must promptly interview all seemingly qualified applicants. The employer must also consider and interview if necessary any other applicants who, through the job bank listing or pure chance, apply for the position. The employer then files a recruitment report with the local DOL explaining why the ad placement was appropriate, who applied for the job (if any), and why any persons who applied were not qualified.

The time required to obtain a labor certification can range from several months to two years, depending on the location of the job (New York, California and Illinois are particularly backlogged).


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