245i - clarification
Feb 5th 2001, 2:24 pm
#1
Guest
Posts: n/a
I have heard that persons offered ANY sort of a job can file for labor certification
(nanny, factory worker etc) yet others say that only CERTAIN jobs would qualify (doctors,
computers etc) .
Does anyone know which is correct ?
(nanny, factory worker etc) yet others say that only CERTAIN jobs would qualify (doctors,
computers etc) .
Does anyone know which is correct ?
Feb 5th 2001, 3:58 pm
#2
Guest
Posts: n/a
Hi,
THIS SHOULD NOT BE CONSTRUED TO BE LEGAL ADVICE. I AM NOT A LAWYER. I DON'T EVEN PLAY
ONE ON TV!
If a petition (form I-140) is properly filed on the basis of a labor certification before
30 April 01, the beneficiary will be able to adjust status under section 245(i).
Here is what Section 245(i) can and cannot do.
Congress has approved, and President Clinton has signed, a bill authorizing an extension
of the provisions of Section 245(i) for a limited time. If you can benefit from these
provisions you must act quickly.
Section 245(i) of the Immigration and Nationalities Act formerly allowed a person who was
out of status, had entered the US without inspection or who had violated the terms of
his/her admission to adjust status to permanent resident if otherwise eligible without
leaving the country. A penalty of $1,000 was charged for each person who qualified. This
provision of law expired on January 14, 1998.
Aliens who had a labor certification or alien petition filed before this date were still
allowed to retain the benefits of Section 245(i) but those whose petitions were filed
after January 14, 1998 were not.
The new legislation extends these benefits to those whose alien petitions or labor
certifications were/are filed between January 14, 1998 and April 30, 2001. Therefore, if
you can benefit from this legislation, but a petition has not been filed on your behalf,
you should arrange for that filing without delay as these benefits expire on April 30th.
ELIGIBILITY REQUIREMENTS
* Only certain violations of US immigration laws are included. You must be otherwise
admissible in order to benefit.
* Each included alien must have been physically present in the United States on December
21, 2000. You DO NOT have to be legally present (inspected, admitted and in status),
but you do have to be here. You should be able to prove your presence on this date.
* Must have an alien petition or labor certification PROPERLY FILED between January 14,
1998 and April 30, 2001.
WHAT SECTION 245(i) DOES
* An alien who is eligible under these provisions may adjust status in any category, but
must use the new priority date.
Example: An alien, a single adult man, out of status, from the Philippines has an alien
petition filed by a sibling approved on January 10, 2001. These 4th preference filings on
Filipinos currently are taking about 21 years to become current. On February 20th his
mother, a widow, marries a US Citizen and files a joint I-130/I-485 package to adjust her
status. On October 15, 2001 these petitions are approved and she files form I-130 on
behalf of her son. Thus the preference category of the son goes from 4th preference to 2B
preference. Preference 2B aliens from the Philippines are reaching currency in about 7
years (a great improvement over the 21 years or so he would have to wait for his sisters
petition to become current). He will, however, have to use the priority date for his
mothers petition to determine when his visa is available.
Similarly, he could have won the visa lottery (DV program). He would still be allowed to
adjust his status based on his eligibility deriving from his sisters petition.
* Derivatives also get benefits from 245(i). Even children who age out or marry are
still eligible to adjust under 245(i). Similarly, a spouse who is eligible to adjust
under 245(i) retains this benefit even if she divorces the alien from whom the benefit
is derived.
* Eligibility to adjust under 245(i) exists even if the labor certification is withdrawn
or the company ceases operation or the alien petition is withdrawn. The deciding issue
is that the petition must have been approvable at the time it was submitted.
* Ability to file in the United States, once established, never expires.
WHAT SECTION 245(i) DOES NOT DO
* Section 245(i) does not protect a person who is out of status from being arrested and
removed (deported).
* Section 245(i) does not protect a person from the three or 10 year bars. For this
reason, a person who has been out of status for over 180 days should not leave the US
until actually becoming a permanent resident. LEAVING THE US BEFORE ACTUALLY BECOMING A
PERMANENT RESIDENT WILL STILL TRIGGER THE BARS.
IMPORTANCE OF SEEKING LEGAL ADVICE AND ASSISTANCE
As explained above, a petition or labor certification MUST BE PROPERLY FILED in order for
the benefits of section 245(i) to come into play. A mistake in preparing the documents or
failure to include the appropriate fee will result in rejection and will not bring the
desired benefits. Such a rejection could easily delay submission until after April 30th
when this provision of law expires.
Applicants are urged to seek the advice of a well qualified immigration attorney to assist
in preparing petitions and labor certifications.
Does this help answer your questions?
Ed MacNeil Ancient Aviator North Hampton, NH, USA
[email protected] wrote:
> I have heard that persons offered ANY sort of a job can file for labor certification
> (nanny, factory worker etc) yet others say that only CERTAIN jobs would qualify
> (doctors, computers etc) .
>
> Does anyone know which is correct ?
THIS SHOULD NOT BE CONSTRUED TO BE LEGAL ADVICE. I AM NOT A LAWYER. I DON'T EVEN PLAY
ONE ON TV!
If a petition (form I-140) is properly filed on the basis of a labor certification before
30 April 01, the beneficiary will be able to adjust status under section 245(i).
Here is what Section 245(i) can and cannot do.
Congress has approved, and President Clinton has signed, a bill authorizing an extension
of the provisions of Section 245(i) for a limited time. If you can benefit from these
provisions you must act quickly.
Section 245(i) of the Immigration and Nationalities Act formerly allowed a person who was
out of status, had entered the US without inspection or who had violated the terms of
his/her admission to adjust status to permanent resident if otherwise eligible without
leaving the country. A penalty of $1,000 was charged for each person who qualified. This
provision of law expired on January 14, 1998.
Aliens who had a labor certification or alien petition filed before this date were still
allowed to retain the benefits of Section 245(i) but those whose petitions were filed
after January 14, 1998 were not.
The new legislation extends these benefits to those whose alien petitions or labor
certifications were/are filed between January 14, 1998 and April 30, 2001. Therefore, if
you can benefit from this legislation, but a petition has not been filed on your behalf,
you should arrange for that filing without delay as these benefits expire on April 30th.
ELIGIBILITY REQUIREMENTS
* Only certain violations of US immigration laws are included. You must be otherwise
admissible in order to benefit.
* Each included alien must have been physically present in the United States on December
21, 2000. You DO NOT have to be legally present (inspected, admitted and in status),
but you do have to be here. You should be able to prove your presence on this date.
* Must have an alien petition or labor certification PROPERLY FILED between January 14,
1998 and April 30, 2001.
WHAT SECTION 245(i) DOES
* An alien who is eligible under these provisions may adjust status in any category, but
must use the new priority date.
Example: An alien, a single adult man, out of status, from the Philippines has an alien
petition filed by a sibling approved on January 10, 2001. These 4th preference filings on
Filipinos currently are taking about 21 years to become current. On February 20th his
mother, a widow, marries a US Citizen and files a joint I-130/I-485 package to adjust her
status. On October 15, 2001 these petitions are approved and she files form I-130 on
behalf of her son. Thus the preference category of the son goes from 4th preference to 2B
preference. Preference 2B aliens from the Philippines are reaching currency in about 7
years (a great improvement over the 21 years or so he would have to wait for his sisters
petition to become current). He will, however, have to use the priority date for his
mothers petition to determine when his visa is available.
Similarly, he could have won the visa lottery (DV program). He would still be allowed to
adjust his status based on his eligibility deriving from his sisters petition.
* Derivatives also get benefits from 245(i). Even children who age out or marry are
still eligible to adjust under 245(i). Similarly, a spouse who is eligible to adjust
under 245(i) retains this benefit even if she divorces the alien from whom the benefit
is derived.
* Eligibility to adjust under 245(i) exists even if the labor certification is withdrawn
or the company ceases operation or the alien petition is withdrawn. The deciding issue
is that the petition must have been approvable at the time it was submitted.
* Ability to file in the United States, once established, never expires.
WHAT SECTION 245(i) DOES NOT DO
* Section 245(i) does not protect a person who is out of status from being arrested and
removed (deported).
* Section 245(i) does not protect a person from the three or 10 year bars. For this
reason, a person who has been out of status for over 180 days should not leave the US
until actually becoming a permanent resident. LEAVING THE US BEFORE ACTUALLY BECOMING A
PERMANENT RESIDENT WILL STILL TRIGGER THE BARS.
IMPORTANCE OF SEEKING LEGAL ADVICE AND ASSISTANCE
As explained above, a petition or labor certification MUST BE PROPERLY FILED in order for
the benefits of section 245(i) to come into play. A mistake in preparing the documents or
failure to include the appropriate fee will result in rejection and will not bring the
desired benefits. Such a rejection could easily delay submission until after April 30th
when this provision of law expires.
Applicants are urged to seek the advice of a well qualified immigration attorney to assist
in preparing petitions and labor certifications.
Does this help answer your questions?
Ed MacNeil Ancient Aviator North Hampton, NH, USA
[email protected] wrote:
> I have heard that persons offered ANY sort of a job can file for labor certification
> (nanny, factory worker etc) yet others say that only CERTAIN jobs would qualify
> (doctors, computers etc) .
>
> Does anyone know which is correct ?
Feb 5th 2001, 4:32 pm
#3
Guest
Posts: n/a
I have heard that persons offered ANY sort of a job can file for labor
> certification (nanny, factory worker etc) yet others say that only CERTAIN jobs would
> qualify (doctors, computers etc) .
>
> Does anyone know which is correct ?
Both
In any case, the prospective employer must document that he is unable to find sufficient
Americans ready, willing and able to do the job. If the job does not require a degree or
equivalent experience, there is a cap of 10,000 Green Cards per year, and therefore a
waiting list. Currently, applications from November 1996 are being processed. So there
would be an extra wait, and I would counsel that the wait will probably be longer than the
four years that the date suggests: there will probably be a large bunch of applications
dated in early January 1998 (when 245(i) originally expired) and another bunch dated from
now to April 30, 2001. So for a non-professional job, you should expect a wait of six
years or more, all the while as an illegal immigrant.
--
Alistair
*IMPORTANT NOTE* I am not a lawyer and do not dispense legal advice. For accurate
information, always consult a good immigration attorney.
> certification (nanny, factory worker etc) yet others say that only CERTAIN jobs would
> qualify (doctors, computers etc) .
>
> Does anyone know which is correct ?
Both
In any case, the prospective employer must document that he is unable to find sufficient
Americans ready, willing and able to do the job. If the job does not require a degree or
equivalent experience, there is a cap of 10,000 Green Cards per year, and therefore a
waiting list. Currently, applications from November 1996 are being processed. So there
would be an extra wait, and I would counsel that the wait will probably be longer than the
four years that the date suggests: there will probably be a large bunch of applications
dated in early January 1998 (when 245(i) originally expired) and another bunch dated from
now to April 30, 2001. So for a non-professional job, you should expect a wait of six
years or more, all the while as an illegal immigrant.
--
Alistair
*IMPORTANT NOTE* I am not a lawyer and do not dispense legal advice. For accurate
information, always consult a good immigration attorney.
