[ALBSA-Info] Immigrants: "Adjustment of Status"

[albboschurch at juno.com]

Important Amesty-Type Law enacted for non-legal Immigrants in the U.S.
New "Adjustment of Immigration Status" Law Enacted

Attention: Immigrants in U.S. without papers.

 NOTE:  [ This is section 245(i) where you can obtain the information
about the status adjustment for  immigrants. To get
more information you can look at:
        www.shusterman.com

And then click '245(i)FAQ English' and you will get
the full information.  ]



SECTION 245(i)

Q1. I've heard that a new law was recently passed by
Congress which would reauthorize section 245(i). What
is section 245(i)?   (§ = Section) 

A. §245 of the immigration law allows persons to
become permanent residents without leaving the U.S.
through a process called "adjustment of status".
Generally, persons who entered the U.S. without being
inspected by an INS officer, who have ever been
unlawfully employed in the U.S. or who failed to
always maintain lawful status in the U.S. are barred
from adjusting their status in the U.S. (There are
certain exceptions to the last two bars for "immediate
relatives" of U.S. citizens and for certain EB
applicants.) 

§245(i) was first added to the law in 1994 to allow
persons who qualify for green cards, but not for
adjustment of status, to be able to adjust their
status in the U.S. upon payment of a fine (currently
$1,000). Congress phased §245(i) out of the law on
January 14, 1998. However, persons who had already
qualified under the law as of that date were
"grandfathered" into the benefits of §245(i) for the
rest of their lives. The problem was that hundreds of
thousands of otherwise qualified persons who missed
the January 14, 1998 deadline cannot adjust status in
the U.S., and cannot return to their countries to
obtain green cards without being subject to either a
three or a ten-year bar from returning to the U.S.
These persons (You may be one of them!) have been in a
state of legal limbo since 1998. 

Congress gave a holiday present to hundreds of
thousands of potential immigrants on December 15, 2000
when they extended the grandfathering date of §245(i)
to April 30, 2001. Not only does this extend the
benefits of §245(i) to persons who had labor
certifications or visa petitions (I-130, I-140 or
I-360) filed on their behalf between 1998 and 2000,
but it gives persons over four months AFTER the
passage of the law to qualify for the benefits of
§245(i). 

Q2. What must I do to qualify for §245(i)? 

A. A person with a labor certification or a visa
petition filed on their behalf on or before January
14, 1998 is qualified for the benefits of §245(i).
Under the new law, a person who has a labor
certification or visa petition filed on their behalf
after January 14, 1998, but on or before April 30,
2001, is also qualified for the benefits of §245(i)
but only if they were physically present in the U.S.
on the date of enactment of the new law (December 21,
2000). 

Q3. Does this mean that I must have been lawfully in
the U.S. on December 21, 2000? 

A. No, merely that you were present, legally or
illegally, in the U.S. on that date. 

Q4. What exactly do I have to do to qualify for the
benefits of §245(i) 

A. You must have either an employer or a relative
submit a labor certification or a visa petition on
your behalf by April 30, 2001. It is not necessary
that the Labor Department or the INS approve your
application or petition by this date, only that it be
filed. 

For example, there is a tremendous labor shortage in
the U.S. in a wide variety of occupations. Whether you
work as a nanny or a rocket scientist, a nurse or a
professor, a mechanic or an engineer, if your employer
(or prospective employer) is unable to find a U.S.
worker to fill your job, you may be eligible for labor
certification. 

Also, if your brother, sister, father, mother, adult
son or daughter, or your spouse is a citizen, or
perhaps even a permanent resident, they should
immediately submit a petition on your behalf, no
matter what the waiting time is in that particular
category. The purpose of filing such a petition is to
qualify you for the benefits of §245(i). 

U.S. citizens may petition for their spouses, married
or unmarried sons and daughters of any age, parents,
and brothers and sisters. Permanent residents may
petition for their spouses and their unmarried sons
and daughters of any age (This includes sons and
daughters who are divorced or widowed). 

Q5. Do I have to adjust status in the same category
that I was petitioned for? 

A. No. Let's assume that your brother (or your
spouse's brother) has recently naturalized. The
published waiting time for a sibling petition varies
from 12 to over 20 years on paper, and the actual
waiting time is even longer. Still, you should have
him petition for you and your spouse and children
immediately. The filing of a simple petition will make
your whole family eligible for the benefits of
§245(i). You are not obligated to wait 12 to 20 years
to obtain a green card. If you qualify for a green
card through employment, through another relative, or
even through the green card lottery, because you are
qualified under §245(i), you will be able adjust for
status for permanent residence much more quickly.
However, if you adjust your status based on a visa
petition which was not the original basis for your
being eligible to adjust status under §245(i), you
must use your new priority date. 

Q6. If my wife's relative files a petition for her on
or before April 30, 2001, can we both qualify for
permanent residence based upon a labor certification
and visa petition filed after that date? How about my
children? Once they turn 21 years of age, they won't
be entitled to any benefits based on this petition,
will they? 

A. You and your children are considered to be
"derivative beneficiaries" of the petition filed by
your wife's relative on her behalf. This entitles not
only your wife, but you and your children to the
benefits of §245(i). If later on, you qualify for a
green card based upon your job, a future job, a
petition filed by one of your relatives after April
30, 2001, or if you win the green card lottery no
matter how far in the future, you and your family can
still adjust status under §245(i). 

Even your children who "age-out" by turning 21, or by
marrying, will still be entitled to the benefits of
§245(i) if they were "derivative beneficiaries" of a
visa petition filed by your wife's relative on or
before April 30, 2001. 

Conversely, if you and your wife divorce, not only
will you and your children be eligible for the
benefits of §245(i), but so will each of your new
spouses and children, as long as the new relationships
are in place prior to the time you or your ex-wife
adjust status. 

An INS Memorandum, dated June 10, 1999, provides
excellent guidance in such situations. 

Q7. What happens if my labor certification is not
approved? Or if the employer goes bankrupt or
withdraws my labor certification or visa petition?
What happens if my relative dies? Am I still eligible
under §245(i)? 

A. Yes, the INS utilizes an "alien based"
interpretation of §245(i). If a labor certification or
visa petition was "approvable when filed", you are
entitled to the benefits of §245(i) even if the
application/petition was never approved, was
withdrawn, or the petitioner ceases to exist. 

Filings that are deficient because they were submitted
without fee, or because they were fraudulent or
without any basis in law or fact, are not considered
to be "approvable when filed" and confer no benefits
under §245(i) . 

Q8. If I qualify for the benefits of §245(i), leave
the U.S. and return at a later time, will I still be
entitled to adjust status in the U.S. in the future? 

A. Yes. However, if you have been "unlawfully present"
(a legal term of art - be sure to consult with an
experienced immigration attorney) in the U.S. for 180
days or more, you may be subject to either a three or
a ten-year bar to returning to the U.S. If this
applies to you, DO NOT TRAVEL OUTSIDE THE U.S. UNTIL
YOU BECOME A PERMANENT RESIDENT. 

Q9. If I qualify for benefits under §245(i), when will
my eligibility for being able to adjust status in the
U.S. expire? 

A. Never. Once you qualify for benefits under §245(i),
your eligibility never expires. Of course, you must
still qualify (through a relative, a job or the green
card lottery) when you apply for adjustment of status.
And you must be admissible to the U.S. If you are a
criminal, have committed immigration fraud, etc., you
may be inadmissible. 

Q10. I want to qualify for the benefits of §245(i).
What should I do? 

A. You need to move quickly to meet the April 30, 2001
deadline, and you can't afford to make any mistakes.
If the INS or the Labor Department returns your
application because it was incomplete or because you
made a mistake in completing the forms, you may lose
your last best chance to qualify for benefits under
§245(i) and to legalize your status in the U.S. 

Our office is ready to file several hundred labor
certifications and visa petitions between now and
April 30, 2001 to help you qualify for the benefits
under §245(i). We have enlisted the services of former
INS officer Sonya Canton to screen your case to
determine whether you qualify for benefits under the
new law.

Consultations will be offered at a discounted price
during the holidays and at the beginning of the new
year. See http://shusterman.com/intake.html and
schedule your telephonic or in-person consultation as
quickly as possible. We will be submitting
applications/petitions in all 50 states to qualify you
for lifetime benefits under §245(i). 


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