THE ABC'S OF IMMIGRATION - INS RELEASES SECTION 245(I) REGULATIONS

Under US immigration law, people who qualify for permanent residency normally have the choice of processing their green card in the US through a process called adjustment of status or process abroad at a US consulate. Processing in the US through adjustment of status normally requires a demonstration that the applicant has always complied with US immigration law. While processing in the US is certainly convenient, for many it is the only way to legally be able to get permanent legal status in the US. That is because for certain people who have overstayed visas or entered the US without inspection, consular processing will trigger reentry bars of up to ten years.

So it was certainly welcome news when Congress temporarily restored Section 245i of the Immigration and Nationality Act in December 2000.  Section 245(i) of the Immigration and Nationality Act allows foreign nationals who have had certain status violations, did not enter the US lawfully and have engaged in unauthorized employment to pay a 00 penalty fee and adjust status within the US. 

Section 245(i) expired in January 1998, but last December, as part of the Legal Immigration and Family Equity Act (LIFE Act), was extended until April 30, 2001.  This means that to be eligible for adjustment of status under section 245(i), the applicant must have a qualifying family member or an employer petition for their immigration before April 30.  For applications filed by employers, labor certifications filed with state departments of labor are considered qualifying applications. 

This week the INS released a regulation dealing with filing applications under section 245(i).  While most of the procedures are not new, before they were contained only in memoranda from the INS and did not have the force of regulations.  Also, because these are agency-wide rules, there should be less variation between offices.

Basic eligibility under section 245(i) requires, in addition to the qualifying immigrant visa petition, that the beneficiary have been in the US on December 21, 2000, the date the LIFE Act when into effect.  To be a qualifying immigrant visa petition, the application must be “approvable when filed.”  “Approvable when filed” means 1) that the petition is not fraudulent, 2) that, if a family case, the proper family relationship exists, and 3) that it is not frivolous.  A petition can be ultimately denied and yet still meet the definition of “approvable when filed.”  Even petitions filed without all the necessary information are “approvable when filed,” and the INS will make a request for additional evidence, which must be submitted within 12 weeks.

The following groups of people, who would ordinarily be ineligible for adjustment of status, are able to apply for adjustment of status under section 245(i):

·        People who entered the US without inspection;

·        People who have fallen out of valid nonimmigrant status or who have otherwise violated the terms of their status;

·        People who have engaged in unauthorized employment;

·        Crewmembers who entered the US with a D visa;

·        People admitted in the transit without visa category; and

·        People admitted under the Visa Waiver Pilot Program (now the Visa Waiver Permanent Program).

Some classes of people will remain ineligible for adjustment of status, despite the reinstatement of section 245(i).

·        Stowaways,

·        People admitted on a K visa who failed to marry the petitioning US citizen within 90 days after arrival;

·        People subject to the J-1 two-year home residency requirement;

·        People who have failed to appear at a scheduled deportation hearing or asylum interview, or who have failed to follow a deportation order or grant of voluntary departure;

·        People who are seeking adjustment of status based on a marriage to a US citizen or permanent resident that was entered into while the person was in deportation proceedings, unless it can be shown that the marriage was entered into in good faith and not for immigration purposes;

·        People who were placed in removal proceedings upon their entry to the US;

·        Children in nonimmigrant status or seeking to adjust their status as orphans;

·        People in S visa status (government informants) who have not received permission from the Attorney General to seek adjustment of status; and

·        People who are deportable by reason of having engaged in terrorist activities while in the US.

So long as the petition was “approvable when filed,” even if it is denied, withdrawn or later revoked, it can be the basis for filing an application for adjustment of status under section 245(i).  This means that, for example, a petition filed for a spouse where the marriage is later terminated can still be the basis for an adjustment application.  Also, a child who was under 21 at the time the initial application for their parent was filed will be allowed to adjust status with the parent even though they are over 21 at the time.  A labor certification that is withdrawn because of a downturn in business can also be the basis for filing an application for adjustment of status.  However, if the INS determines that the petition was not approvable when filed, it cannot be used to provide a basis for adjustment of status. 

While a labor certification can be withdrawn and still be the basis for eligibility under section 245(i), if the employer substitutes a new beneficiary, the initial beneficiary can no longer use the labor certification as a basis for eligibility under section 245(i).

It is important to remember that while the qualifying application must be filed before April 30, 2001, simply because the application is filed does not give the person any right to be in the US, nor does it legalize their immigration status or provide them with work authorization.  They are still, assuming that they are out of status, subject to deportation.  However, because of the reentry bars, the beneficiary should remain in the US while the application is pending.

As part of an effort to limit the perception that section 245(i) is an amnesty, Congress required applicants for adjustment of status under it to show that they were in the US on December 21, 2000.  The LIFE Act does not provide any guidance as to how a person can show this.  The regulation does, however, provide information as to what types of evidence can be used to show physical presence in the US.  The INS is also requesting comments about what sort of evidence it should require.  A copy of a government (federal, state or local) issued documents demonstrating the applicant’s presence in the US on or before December 21, 2000 can be used.  Also, if the applicant does not have such a document, but believes that the INS may have a copy of it, the applicant can submit a statement to the INS outlining the information pertaining to the document. 

The INS will also accept documents that were not issued by the government, if it bears the applicant’s name, is dated, and because the signature of the person who issued it.  Affidavits claiming physical presence on December 21 will not be accepted without additional evidence to verify the claim.  Such evidence could include cancelled checks, rent receipts, school records, utility bills, etc. 

Only the primary applicant for adjustment of status has to meet the physical presence requirement.  Dependent family members do not need to be able to prove that they were physically present in the US on December 21, 2000.