Announcement

Collapse
No announcement yet.

Help: Filing I-485 and 245i

Collapse
X
  •  
  • Filter
  • Time
  • Show
Clear All
new posts

  • Help: Filing I-485 and 245i

    Hello all,

    I really need some help here. I'm currently in the United States and want to adjust status here by filing I-485. My I-130 petition is now current according to the visa bulletin board. Here is my status.

    Back in 1994, an I-130 was filed on my behalf by my PR father.

    Since 1994, I have left the US only once, which was in 1999 for about a month.

    In 1994 I came into the US on the Visa Waiver Program, with a 3 month I-94. Obviously, I overstayed those 3 months by a long time. As I mentioned, my next departure from the US was not until 1999 and I came back to the States about a month later.

    As I understand it by 1999, by overstaying my tourist visa in 1994, I became subject to the 3/10 year bans if I left the US. I had no idea that I was subject to those bans when I left for a month in 1999, or else I would have never left. Anyways, when I came back a month later, I came in again with a tourist visa and was not made subject to the ban at the airport. I came in without a problem.

    Since that time, 1999, I have not left the United States again. Basically, since my I-130 is current, I want to adjust status here in the US via the I-485. Since I am out of status, I know that I also need to file the 245i. But someone has told me that I might need a waiver since I became subject to the bans when I overstayed my stay and left the US back in 1999.

    I am a bit confused and would like some clarification if possible. I can understand why a waiver may be necessary if one were in the US and was filing for a Green Card via consular processing, which would require them to leave the US. But in my case, for adjusting status here in the US, why would a waiver be needed in addition to the 245i? I am not in deportation proceedings and the 3/10 year ban were not imposed on me when I came back to the US in 1999.

    Any help would be appreciated. Thanks for reading!!!!

  • #2
    Hello all,

    I really need some help here. I'm currently in the United States and want to adjust status here by filing I-485. My I-130 petition is now current according to the visa bulletin board. Here is my status.

    Back in 1994, an I-130 was filed on my behalf by my PR father.

    Since 1994, I have left the US only once, which was in 1999 for about a month.

    In 1994 I came into the US on the Visa Waiver Program, with a 3 month I-94. Obviously, I overstayed those 3 months by a long time. As I mentioned, my next departure from the US was not until 1999 and I came back to the States about a month later.

    As I understand it by 1999, by overstaying my tourist visa in 1994, I became subject to the 3/10 year bans if I left the US. I had no idea that I was subject to those bans when I left for a month in 1999, or else I would have never left. Anyways, when I came back a month later, I came in again with a tourist visa and was not made subject to the ban at the airport. I came in without a problem.

    Since that time, 1999, I have not left the United States again. Basically, since my I-130 is current, I want to adjust status here in the US via the I-485. Since I am out of status, I know that I also need to file the 245i. But someone has told me that I might need a waiver since I became subject to the bans when I overstayed my stay and left the US back in 1999.

    I am a bit confused and would like some clarification if possible. I can understand why a waiver may be necessary if one were in the US and was filing for a Green Card via consular processing, which would require them to leave the US. But in my case, for adjusting status here in the US, why would a waiver be needed in addition to the 245i? I am not in deportation proceedings and the 3/10 year ban were not imposed on me when I came back to the US in 1999.

    Any help would be appreciated. Thanks for reading!!!!

    Comment


    • #3
      http://66.218.71.225/search/cache?p=...icp=1&.intl=us


      Q1. What is the Section 245(i) provision of the Legal Immigration Family Equity Act (LIFE Act)?

      A1. Section 245(i) allows certain persons, who have an immigrant visa immediately available but entered without inspection or otherwise violated their status and thus are ineligible to apply for adjustment of status in the United States, to apply if they pay a $1,000 penalty. The LIFE Act temporarily extends the ability to preserve eligibility for this provision of law until April 30, 2001. Use of Section 245(i) adjustment of status previously was limited to eligible individuals who were the beneficiary of a visa petition or labor certification application filed on or before January 14, 1998.

      Q2. Who are the "certain persons" covered under Section 245(i) adjustment of status?

      A2. Those covered by the provision are listed at Section 245(a) and (c) of the Immigration and Nationality Act and include individuals who:

      Entered the United States illegally;
      Worked in the United States illegally,
      Failed to maintain continuously lawful status,
      Entered under the Visa Waiver Pilot Program,
      Entered as foreign crewmen, and
      Entered as foreign travelers in transit without a visa.
      Q3. Am I eligible for Section 245(i) adjustment of status under the LIFE Act?

      A3. To be eligible, you must:

      Be the beneficiary of a Form I-130 immigrant visa petition ("Petition for Alien Relative"), or Form I-140 immigrant visa petition ("Immigrant Petition for Alien Worker"), or Form I-360 ["Petition for an Amerasian Widow(er), or Special Immigrant], or Form I-526 ("Petition for an Alien Entrepreneur") filed with the BCIS on or before April 30, 2001, (either received by BCIS or, if mailed, postmarked on or before April 30, 2001) or
      Be the beneficiary of an application for labor certification filed with the Department of Labor (DOL) according to DOL rules on or before April 30, 2001, and
      Also have been physically present in the United States on December 21, 2000, if the qualifying visa petition or labor certification application was filed after January 14, 1998.
      All petitions and applications must be properly filed and approvable when filed.

      NOTE: There are some groups that may not be affected by any deadlines related to Section 245(i). The spouse or unmarried minor child of a U.S. citizen or the parent of a U.S. citizen child at least 21 years of age if he/she was inspected and lawfully admitted to the United States, but subsequently overstayed his/her authorized admission or worked without permission, does not need to apply for adjustment of status under Section 245(i). Also, certain persons who are eligible for certain employment-based immigrant visas and who were inspected and lawfully admitted to the United States, but have not violated their status or worked without permission for more than 180 days, do not have to apply for adjustment of status under Section 245(i).

      Q4. What is the deadline for filing in order to preserve eligibility for adjustment of status using Section 245(i)?

      A4. You have a very short window of opportunity, which ends April 30, 2001, to preserve your eligibility to file for adjustment of status under Section 245(i). You are not required to file for adjustment of status (Form I-485) on or before April 30, 2001. However, to preserve your eligibility to apply for adjustment using Section 245(i) you must:

      Be the beneficiary of a Form I-130 immigrant visa petition ("Petition for Alien Relative") or Form I-140 immigrant visa petition ("Immigrant Petition for Alien Worker") filed with the BCIS on or before April 30, 2001, or
      Be the beneficiary of an application for labor certification filed with the DOL on or before April 30, 2001.
      All petitions and applications must be properly filed and approvable when filed.

      Q5. What does "properly filed" mean for an immigrant visa petition?

      A5. "Properly filed" for an immigrant visa petition means that:

      The immigrant visa petition was received by BCIS prior to the close of business on or before April 30, 2001, or if mailed, was postmarked on or before April 30, 2001, and
      The immigrant visa petition contains the names of the petitioner and the beneficiary, the proper fee, and the signature of the petitioner.

      Q6. What does "approvable when filed" mean for an immigrant visa petition?

      A6. "Approvable when filed" for an immigrant visa petition means that:

      It was filed properly;
      It was meritorious in fact;
      It was not fraudulent; and
      At the time of filing, the beneficiary had the appropriate family relationship or employment relationship that would support the issuance of an immigrant visa.

      Q7. What does "properly filed" mean for an application for labor certification?

      A7. "Properly filed" for an application for labor certification means that it was filed with the DOL on or before April 30, 2001, according to DOL rules.

      Q8. What does "approvable when filed" mean for an application for labor certification?

      A8. "Approvable when filed" for an application for labor certification means that when the labor certification was filed with the DOL:

      It was filed properly according to DOL rules;
      It was meritorious in fact; and
      It was not fraudulent.

      Q9. When do I submit my application for using Section 245(i) adjustment of status?

      A9. You will be able to submit your application for adjustment of status under Section 245(i) at any later time when your immigrant petition is approved and a visa number is immediately available for you in accordance with the State Department's monthly Visa Bulletin.

      Q10. What should my adjustment of status application under Section 245(i) include?

      A10. The Section 245(i) application should include:

      Form I-485 ("Application to Register Permanent Residence or Adjust Status") with all information and documentation specified in the instructions;
      Supplement A to Form I-485;
      $1,000 penalty fee;
      $220 application fee and the $25 fingerprinting fee; and
      Proof that the principal beneficiary of the immigrant visa petition or labor certification application was physically present in the United States on December 21, 2000, if the qualifying visa petition or labor certification application was filed after January 14, 1998.
      In addition, if you want permission to work in the United States while your application is being processed, you may also apply for work authorization by including a Form I-765 ("Application for Employment Authorization") and the $100 application fee.

      Q11. Does everyone who files for adjustment of status using Section 245(i) have to pay the $1,000 penalty fee?

      A11. The only applicants using Section 245(i) who do not have to pay the $1,000 penalty fee are those who, at the time they file their application for adjustment of status (Form I-485) under Section 245(i), are:

      Unmarried and less than 17 years of age, or
      The spouse or unmarried child (less than 21 years of age) of a legalized alien who qualifies for and has properly filed Form I-817, "Application for Voluntary Departure under the Family Unity Program." Such persons must submit a copy of their receipt or approval notice for filing Form I-817 along with their application for adjustment of status under Section 245(i).
      All other applicants for adjustment of status (Form I-485) under Section 245(i) must pay the $1,000 penalty fee.

      Q12. Why do I have to prove that I was physically present in the United States on December 21, 2000?

      A12. The law states that if you are the beneficiary of a visa petition or labor certification application that was filed after January 14, 1998, and on or before April 30, 2001, in order to be eligible for adjustment of status under Section 245(i) you also had to be physically present in the United States on the date the LIFE Act was enacted"” December 21, 2000.

      Q13. Do dependent family members also need to prove that they were physically present in the United States on December 21, 2000?

      A13. No. The dependent spouse or children of the principal beneficiary do not need to prove that they were physically present in the United States on December 21, 2000. Only the principal beneficiary of the immigrant visa petition filed after January 14, 1998, and on or before April 30, 2001, is required to meet the physical presence requirement.

      Q14. What kind of proof can I submit with my Section 245(i) adjustment-of-status application to demonstrate that I was in the United States on December 21, 2000?

      A14. Government-issued documents are preferable as proof of physical presence, and BCIS and the Executive Office for Immigration Review (EOIR) documents have precedence over the records of other agencies (see Q15 and Q16). If there are no government-issued documents that demonstrate your physical presence in the United States on December 21, 2000, BCIS will accept and evaluate non-government issued documents as well (see Q17). You may submit photocopies of government-issued documents as well as non-government-issued documents that establish your physical presence.

      You may have a single document that may suffice to establish your physical presence on December 21, 2000. But if you do not possess documentation that contains the exact date of December 21, 2000, you may need to submit several documents to prove that you were physically present in the United States prior to, as well as after December 21, 2000.

      BCIS will evaluate all evidence on a case-by-case basis and will not accept a personal affidavit attesting to your physical presence on December 21, 2000, without requiring an interview or additional evidence to validate the affidavit.

      Q15. Specifically, what kind of BCIS documentation can I submit to prove that I was physically present in the United States on December 21, 2000?

      A15. Examples of acceptable BCIS documentation include, but are not limited to:

      Photocopy of the Form I-94, Arrival-Departure Record, issued upon your arrival in the United States;
      Photocopy of Form I-862, Notice to Appear;
      Photocopy of the Form I-122, Notice to Applicant for Admission Detained for Hearing before Immigration Judge, issued by BCIS on or prior to December 21, 2000, placing you in exclusion proceedings;
      Photocopy of the Form I-221, Order to Show Cause, issued by BCIS on or prior to December 21, 2000, placing you in deportation proceedings;
      Photocopy of any application or petition for an immigration benefit filed by you or on your behalf on or prior to December 21, 2000, which establishes your presence in the United States, or your BCIS fee receipt for the application or petition.
      If you don't have the document(s) but believe that a copy is already contained in your BCIS file, you may submit a statement as to the name and location of the issuing federal, state, or local government agency, the type of document and the date on which it was issued. When processing your case, BCIS will look in your BCIS file to find the document(s) you specify. You do not need to file a Freedom of Information Act (FOIA) request to obtain the actual document(s) from your BCIS file.

      Q16. Specifically, what kind of other government documentation can I submit to prove that I was physically present in the United States on December 21, 2000?

      A16. Examples of such other government documentation include, but are not limited to:

      State driver's license;
      State identification card;
      County or municipal hospital record;
      Public college or public school transcript;
      Income tax records;
      Certified copy of a federal, state or local governmental record which was created on or prior to December 21, 2000, and filed by you or on your behalf to seek a benefit from that federal, state or local governmental agency;
      Certified copy of a federal, state or local governmental record which was created on or prior to December 21, 2000, that establishes that you submitted an income tax return, property tax payment, or similar submission or payment to that federal, state or local governmental agency;
      Your transcript from a private or religious school"”that is registered with, or approved or licensed by, appropriate state or local authorities, accredited by the state or regional accrediting body, or by the appropriate private school association"”or maintains enrollment records in accordance with state or local requirements or standards.
      You will need to obtain the document(s) from other government (non-BCIS) agencies and submit photocopies of those records.

      Q17. Specifically, what kind of non-government documentation can I submit to prove that I was physically in the United States on December 21, 2000?

      A17. Examples of such non-government documentation include, but are not limited to:

      School records;
      Rental receipts;
      Utility bill receipts;
      Any other dated receipts;
      Personal checks written by the applicant bearing a bank cancellation stamp;
      Employment records, including pay stubs;
      Credit card statements showing the dates of purchase, payment, or other transaction;
      Certified copies of records maintained by organizations chartered by the Federal or State government, such as public utilities, accredited private and religious schools, and banks;
      If you established that you were part of a family unit living in the United States, documents proving the presence of another member of your family unit; and
      If you have ongoing correspondence or other interaction with BCIS, a list of the types and dates of such correspondence or other contact that you know are to be contained in BCIS records.
      Such non-government documentation must indicate your name, have been dated at the time it was issued, and bear the seal or signature of the issuing authority (if the documentation is normally signed or sealed), be issued on letterhead stationery, or be otherwise authenticated.

      Q18. Am I still considered "illegal" if I have an immigrant visa petition or labor certification application filed on my behalf on or before April 30, 2001?

      A18. The mere filing of a visa petition or application for a labor certification has no effect on your current immigration status or unlawful presence in the United States. If you are not in lawful status, you will continue to accrue periods of unlawful presence until you properly file your application for adjustment of status (Form I-485) under Section 245(i). When you file an application for adjustment of status, you stop accruing unlawful presence, but the periods of unlawful presence you accrued before your adjustment application are not eliminated.

      Q19. Can I travel outside the United States if I have an immigrant visa petition or labor certification application filed on my behalf on or before April 30, 2001?

      A19. If you are living illegally in the United States, the mere filing of a visa petition or application for a labor certification has no effect on your current immigration status or unlawful presence in the United States. If you leave the United States, you will have no authorization to re-enter the country.

      When you file your application for adjustment of status (Form I-485), there is a way to obtain permission in advance to travel abroad by requesting "Advance Parole" from BCIS. However, if you have accrued more than 180 days of unlawful presence, you should not travel abroad because you then will be barred from admission to the United States for either three years or 10 years, even if you were granted "Advance Parole." Generally, the three-year bar to admission applies to those who were unlawfully present in the United States for more than 180 days and leave the country, and the 10-year bar applies to those who were unlawfully present in the United States for one year or more and leave the country.

      Q20. Can I work in the United States if I have an immigrant visa petition or labor certification application filed on my behalf on or before April 30, 2001?

      A20. No. The filing of a visa petition or application for a labor certification does not authorize you to work in the United States. You can apply for work authorization at the same time you file your application for adjustment of status (Form I-485) under Section 245(i) authorization by including a Form I-765 ("Application for Employment Authorization") and the $100 application fee.

      Q21. If I have applied for the diversity visa lottery program with the Department of State on or before April 30, 2001, will I be able to preserve my eligibility to adjust my status using Section 245(i)?

      A21. No. The mere filing of a diversity visa lottery program application with the Department of State on or before April 30, 2001, does not preserve your eligibility to adjust your status using Section 245(i). However, if you are the beneficiary of an immigrant visa petition or application for labor certification filed on or before April 30, 2001"”and also have been physically present in the United States on December 21, 2000, if the qualifying visa petition or labor certification application was filed after January 14, 1998"”you may use winning a diversity visa as a basis for adjustment of status using Section 245(i).

      Q22. What other immigration benefits does the LIFE ACT include?

      A22. Creates a new temporary "V" non-immigrant status to allow the spouses and minor children of lawful permanent residents"”waiting more than three years for an immigrant visa based upon an immigrant petition filed on or before December 21, 2000"”to be admitted to and work in the United States while they are waiting for a visa number (priority date) to be reached on the State Department's visa waiting list.

      Expands the current K nonimmigrant status (which was only available to fiancées of U.S. citizens) to now include spouses and accompanying minor children of U.S. citizens to be admitted to the United States while their case is being processed.
      Provides adjustment of status for persons who filed before October 1, 2000, for class membership in one of three "amnesty" lawsuits (CSS v. Meese, LULAC v. BCIS, and Zambrano v. BCIS). Also provides family unity benefits, which may include employment authorization and protection from certain grounds of deportation, for certain spouses and children of applicants.
      Allows individuals, who previously could not have been eligible for relief under the Nicaraguan Adjustment and Central American Relief Act (NACARA) or the Haitian Refugee Immigration Fairness Act (HRIFA) because they were ordered deported/removed from the United States, to reopen their removal proceedings to apply for adjustment of status under NACARA or HRIFA on or before June 19, 2001.


      Q23. Where can I get specific information about the LIFE Act and my own situation?

      A23. You can get general information on the LIFE Act and updates as regulations are finalized to implement the various provisions of the law through the BCIS Web site www.ins.usdoj.gov and the toll-free customer telephone service 1-800-375-5283. Forms can be easily downloaded from the Web site, or requested by calling 1-800-375-5283.

      For more specific information about your own particular situation, you should be cautious to avoid unscrupulous immigration practitioners and contact a licensed attorney or a legal service provider recognized by the Board of Immigration Appeals (see Internet site www.usdoj.gov/eoir under "Pro Bono Program").

      – BCIS –
      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 BCIS 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 BCIS 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, BCIS 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 BCIS has revoked approval, 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: a qualifying family member of the alien who is a citizen or permanent resident of the US may file Form I-130. This form may be ordered toll-free at 800-870-3676 or downloaded from BCIS' website at http://www.ins.usdoj.gov/.

      Employment-based permanent residence: a US employer who has offered the alien beneficiary permanent employment in the US may file Form I-140. 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 BCIS' 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/.../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 BCIS 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 BCIS 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 BCIS 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 BCIS 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 BCIS 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 BCIS 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 does not require labor certifications (for a complete explanation of the exemptions, ask for Employer Bulletin 99-14). FORMS 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 BCIS 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 BCIS 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 BCIS 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 BCIS 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/.../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).


      Submitting Applications under the LIFE Act - Advices BCIS
      The Bureau of Citizenship and Immigration Services (BCIS) is advising the public that the agency is moving as quickly as possible to develop application procedures for immigration benefits created by the Legal Immigration and Family Equity Act (LIFE). The agency will immediately inform the public as procedures are finalized.

      One of the provisions of the LIFE Act is the temporary reinstatement of Section 245(i) of the Immigration and Nationality Act (INA). Section 245(i) is not amnesty for all persons unlawfully in the United States. This provision only applies to certain persons residing in the United States who, although otherwise eligible for an immigrant visa, are barred from adjusting their status in the United States. It allows such persons to adjust their status in the United States instead of acquiring their visa abroad.

      To preserve eligibility to file for adjustment of status under Section 245(i), an individual must be the beneficiary of an immigrant visa petition (Form I-130 or Form I-140), or an application for labor certification filed by April 30, 2001. If the petition or application was filed after January 14, 1998, the beneficiary must be able to demonstrate physical presence in the United States on December 21, 2000.

      An application for adjustment of status (Form I-485) based on Section 245(i) does not need to be filed before April 30, 2001. The application can be filed when an immigrant petition is approved and a visa number is available for the beneficiary in the appropriate preference category in accordance with the State Department's monthly Visa Bulletin. The applicant must also pay the application fee and a $1,000 penalty fee.

      The LIFE Act also created a new nonimmigrant visa category, the "V" visa, and expanded the current "K" visa category. BCIS cannot process applications for these two visa categories until application and adjudication procedures are finalized. At this time, BCIS has begun consulting with the Department of State and hopes to issue guidelines on these new visas by early spring.

      Persons who have concerns about their eligibility for LIFE Act benefits should contact an immigration attorney or an immigrant assistance organization accredited by the Board of Immigration Appeals. Click here for BCIS fact sheet on the LIFE Act. EOIR Statistical Year Book

      The Executive Office for Immigration Review ("EOIR") has introduced a Statistical Year Book with reports on the number of aliens in immigration proceedings before the immigration courts and the Board of Immigration Appeals ("BIA"). Click Here


      New Form I-129W
      The new Form I-129W is now in effect. Its use is not yet mandatory, but BCIS is encouraging the public to use it to save BCIS officer time. The new version can be found on the BCIS website at:

      http://www.ins.usdoj.gov/graphics/fo...es/i-129w.pdf;

      It is not yet known for how long the BCIS will continue to accept the old version. That information will be posted when it is known.


      Frequently Asked Questions on Section 245(i)
      Q1.What is the new Section 245(i) provision of the Legal Immigration and Family Equity Act of 2000 (LIFE Act)?

      Ans. The new Section 245(i) allows certain eligible people (see answer to question #3) 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 Bureau of Citizenship and Immigration Services (BCIS) or a labor certification application with the Department of Labor (DOL) in order to take advantage of this new provision.

      IMPORTANT NOTE:
      The LIFE Act adds a new "physical presence" requirement: People who file a petition or labor certification after January 14, 1998 but before April 30, 2001 must prove that they were in the U.S. on December 21, the date this measure became law, in order to be eligible to use Section 245(i).

      Filing an immigrant visa petition is the first step in a two-step process. The second step is acquiring permanent residency (the "green card") by filing an adjustment of status application (Form I-485). Even if a person does not apply to adjust status until after April 30, 2001, as long as the petition or labor certification is filed before that date, if he/she is qualified, their eligibility will not expire.

      Q2. Why is this new Section 245(i) needed?

      Ans. Because Congress phased out the original Section 245(i) on January 14, 1998. (The original Section 245(i), authorized in 1994, allowed eligible people who were out of status to adjust their status in the U.S. upon payment of a fee of $1,000.) People who already qualified as of January 14, 1998 were "grandfathered" to receive the benefits of Section 245(i). However, many qualified people missed the January 14 deadline and others since have fallen out of status. The extension of Section 245(i) until April 30, 2001 provides a four-month window of opportunity for people to protect their ability to adjust their status in this country.

      Q3. Who is eligible to qualify for the new Section 245(i) provisions?

      Ans. A person who is eligible for permanent residence based on a family relationship or job offer, and who wishes to adjust status to permanent residence without leaving the U.S., could benefit from the new Section 245(i). Most people who entered the U.S. without inspection, overstayed an admission, acted in violation of the terms of their status, worked without authorization, entered as a crewman, or were admitted in transit without a visa, are considered out of status and would be unable to complete the process to become a permanent resident in the U.S. without Section 245(i).

      Q4. What are the three and ten year bars, and why should they be of concern?

      Ans. Without Section 245(i), out of status people needed to return to their home countries and there complete the process for an immigrant visa at the U.S. consulate. However, if people have 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.) Thus, it is particularly important that people subject to the bars not leave the U.S. at all until they become permanent residents.

      Q5. What does the new physical presence requirement mean and how do you prove compliance with it?

      Ans. 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 the date that LIFE Act is signed into law, 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.

      Q6. How does a person take advantage of the new Section 245(i)?

      Ans. To take advantage of the new Section 245(i), a relative must submit a visa petition to the BCIS on behalf of the person seeking Section 245(i) benefits. The U.S. citizen or legal permanent resident who is sponsoring the Section 245(i) eligible person must file (and sign) the petition. In addition, an employer can submit a labor certification to the DOL on behalf of the person seeking Section 245(i) relief. Both petitions and applications must be submitted on or before April 30, 2001. The BCIS or DOL does not have to approve the petition or application by that date. It just needs to be filed by April 30, 2001.

      Legal permanent residents can petition for their spouses and unmarried sons and daughters (of any age). U.S. citizens can petition for their spouses, married and unmarried sons and daughters of any age, parents, and brothers and sisters.

      It is important to know that battered immigrant spouses can submit petitions for themselves, as can applicants for national interest waivers.

      Q7. Do people have to adjust status using the same category in which they petitioned?

      Ans. No. It is important that people eligible to use Section 245(i) file their petitions and applications before April 30, 2001 using the eligibility they have at the time they file the petition. This initial filing preserves the ability to adjust! People can switch to another category when they become eligible for that category if that switch allows them, for example, to more quickly adjust their status.

      Q8. What is the fee and when must it be paid?

      Ans. The Section 245(i) fee is $1,000, and is in addition to any other filing fees the BCIS and DOL charge. In most cases, this fee does not have to be paid when relatives or employers submit the visa petition or labor certification on or before April 30, 2001. Rather, it is usually due later, when people adjust their status and become permanent residents. Thus, the $1,000 fee usually needs to be paid at the time of filing the Form I-485A, which is submitted along with the standard application for adjustment of status (Form I-485).

      Q9. Does the new Section 245(i) grant work authorization, protection from deportation, or travel permission?

      Ans. NO! Section 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 offers no other protections or rights.

      Q10. What can people do to make sure they take advantage of this new opportunity?

      Ans. It is vitally important that people seeking Section 245(i) benefits seek advice from the people who can really help them: immigration lawyers and clinics with the expertise and knowledge to get the job done correctly. People who use notaries endanger themselves and their families and may end up, due to incorrect advice, being unable to use Section 245(i), out of luck and still out of status!

      Information on § 245(i) Provisions In New Immigration Bill

      The Omnibus Consolidated Appropriations Act of 2001, which Congress passed on December 15, contains several immigration-related provisions including the reinstatement of Section 245(i) until April 30, 2001.

      It is unknown exactly when the President will sign the measure, however he must do so by midnight on December 21, 2000.

      In order to take advantage of the 245(i) grand fathering, individuals must have an immigrant visa petition or a labor certification application on file with the Immigration Service or Department of Labor by April 30, 2001. This means that you must have either an

      Comment


      • #4
        thanks for the info, but i've been reading such documents all day today and can't make sense out of them.

        i understand that if you are subject to the bars and are in the US right now, then one should NOT leave the US.

        My situation is that I DID leave when out of status back in 1999, and thus I technically triggered the bars and this will show up on my I-485 application. None of the documents that I've read address this issue.

        Comment


        • #5
          Runa,
          I understand your question.
          The problem is not that you left country in 1999.
          Not even the fact that you re-entered 1 month later.

          But question is: HOW DID YOU RE-ENTER?
          You say you re-entered on a tourist visa.
          So, you actually applied for one and got a stamp in your passport, stating 'B-1' or 'B-2', right?
          If so, how did it happen?

          MAJOR Question is: did you intentionally lie and mislead consular officer, or Officer at POE, in order to get a tourist visa or admission to US?


          In general don't expect any definite answer to your specific questions on this immigration board.
          The law is too complicated and most people rely on hearsay or on whatever they can understand from what they are reading.
          They read one Section, Regulation, but miss dozens of others that same Section refers too, thus confusing themselves and each others into beleiving in what actually is not supported by law.

          You most certainly need someone who practices law for living and who has dealt with similar cases in past.

          Good luck,
          E.

          Comment


          • #6
            I know it doesn't apply to your case, but in case if anyone is curious..

            http://www.americanlaw.com/vwpp.html

            "No Previous Violation

            If the alien previously was admitted without a visa under the VWP, the alien must not have failed to comply with the conditions of any previous admission as such a nonimmigrant. Therefore, if the alien violates the terms of the VWP, he or she will never be able to use it again.

            Notwithstanding the above, in a USCBP press release dated August 12, 2004, it was stated that USCBP officers were authorized to grant "no-risk" travelers who overstayed the VWP on a prior visit a one-time parole, after which they would have to obtain a visa to return."

            Comment


            • #7
              (I am by no means an expert and the following is my opinion only).

              I'm really, really surprised that you were allowed back into the country with inspection in 1999, because you would have been subject to the 3/10 year bar. Actually, going by what you say, you would have been barred for the full 10 years since you had already accrued more than 180 days of unlawful presence. You got really lucky.

              You are right that you may need 245(i) to adjust at this time (since your petition was submitted in '94 and your case would be grand fathered into this relief even though 245(i) has sun setted). 245(i) does not, however, preclude you from this bar. When your case is in the process of being adjudicated, you actually have lawful presence status in the country until a decision is rendered, regardless of what your prior status was. However, you are still subject to the bar, should you decide to leave the country. As far as I know, an advance parole does not apply in these cases. My understanding is that AP's should not be given in these cases, but I have known of (then) INS morons approving them nonetheless. There have been cases when, upon return, these folks were turned back.

              I really don't know how this would complicate your adjustment at this time. You definitely need a competent attorney. You're one lucky guy, but you can't get lucky all the time! Proceed with caution. You have a golden opportunity of legalizing your status, don't screw it up.

              Good luck to ya.

              Comment


              • #8
                thanks for your responses guys, really appreciated it! I'm heading to see an attorney this week. Thanks again for the info!

                Comment

                Sorry, you are not authorized to view this page

                Home Page

                Immigration Daily

                Archives

                Processing times

                Immigration forms

                Discussion board

                Resources

                Blogs

                Twitter feed

                Immigrant Nation

                Attorney2Attorney

                CLE Workshops

                Immigration books

                Advertise on ILW

                EB-5

                移民日报

                About ILW.COM

                Connect to us

                Questions/Comments

                SUBSCRIBE

                Immigration Daily



                Working...
                X