As the deadline for filing applications to take advantage of the temporary restoration of section 245(i), April 30, rapidly approaches, we provide a repeat of an earlier article on the subject, along with some tips on last minute filing.

Initially enacted in 1994, section 245(i), referring to its place in the Immigration and Nationality Act, allows many people who have either never had valid immigration status in the US or who have fallen out of valid status to pay a 00 penalty fee and apply for adjustment of status in the US.  The reason that this is so important is that without it, many people who do not have valid status in the US would be required to seek their immigrant visa in their home country, and because of the status violation, would be barred from reentering the US for at least three, and in many cases, ten years.

To take advantage of section 245(i), the person must meet two primary requirements.  First, they must be able to prove that they were in the US on the date that the law was enacted, December 21, 2000.  Second, section 245(i) will be in effect only until April 30, 2001.  This means that to be eligible for adjustment of status under section 245(i), an application for an immigrant visa must be filed by a qualifying family member on or before April 30, 2001, or that a labor certification or application for an immigrant worker must be filed on or before that date.  The effect of this is that people will be able to apply for adjustment of status long after April 30, 2001, so long as the qualifying application is filed by that date.

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).

The following 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.

To apply for adjustment of status under section 245(i), the applicant must submit both Form I-485, the standard adjustment of status application, and Supplement A to Form I-485, in addition to the other required forms.  Supplement A is used to determine whether the applicant eligible for adjustment of status under section 245(i).  Applicants will also be required to submit proof that they were in the US on the date section 245(i) was reinstated, December 21, 2000.

Because the budget bill was enacted with so little recorded debate, there is no report on the immigration provisions.  To address this issue, Sen. Edward Kennedy (D-MA), one of the early supporters of LIFA, included a statement on the intended interpretation of the new immigration laws.  With regard to section 245(i), he says that the requirement that the applicant be physically present in the US on the date of enactment should “be interpreted with common sense.”  Noting that in many cases it could be difficult for an applicant to prove his or her presence in the US, Sen. Kennedy urged the INS “to be flexible in the types of evidence it will accept.”  He also encouraged the INS to conduct outreach programs to inform people of their potential eligibility.  He also said that to ensure that all eligible applicants are able to seek adjustment of status, the INS should accept incomplete applications and allow additional documentation to be submitted after the deadline.

It is estimated that approximately 200,000 people will benefit from the temporary restoration of section 245(i).

The upcoming deadline of April 30 is not a deadline for filing adjustment of status applications.  It is the deadline for filing a qualifying immigrant petition that, when approved, will allow the beneficiary to apply for adjustment of status.  This petition can be filed by a family member or by an employer.

If filed by a family member, the familial relationship must be one that qualifies under immigration law.  These are:

• Spouses of US citizens and permanent residents
• Children (unmarried and under 21) of US citizens and permanent residents
• Parents of US citizens
• Unmarried adult children of US citizens
• Married adult children of US citizens
• Siblings of US citizens

The qualifying relative must file Form I-130 with the appropriate local INS office on or before April 30.  Ordinarily, the application must include documentation of the qualifying family relationship, and of the petitioner’s status as a citizen or permanent resident.  However, given the time constraint for filing, the INS allows what are called “skeletal” petitions, which are missing some of the information that is required to adjudicate the petition.  The INS will later issue a request for this information.  While skeletal petitions will be accepted, the INS does require that the petition be approvable when filed.  So, for example, the qualifying family relationship must exist at the time of filing, even if it is not proved with documentation at the time of filing.

Applications may also be filed by an employer.  In these cases, the application that must be filed by April 30 is Form ETA-750, Application for Alien Labor Certification.  It must be filed with the state department of labor in the state where the job is located.  As with family based applications, the labor certification application may be filed in skeletal form (for example, without evidence that the alien qualifies for the position) so long as it can be documented that he or she qualified for it at the time the application was filed. 

Because the date of filing is so important, care should be taken to document when the application was filed.  The INS is tremendously busy because of the rush of applications, so the receipt notices that it issues by mail may be delayed and not reflect the actual date on which they received the application.  If the application is filed in person, care should be taken to obtain a receipt at that time.  If the application is filed by mail, a return receipt card that will indicate the date of receipt should be used.  Also, because the application need only be postmarked by April 30, people mailing applications should take care to ensure that the postmark is accurate.