245(i) question

Old Jan 22nd 2001, 7:25 am
  #1  
Kavabanga
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Hi All,

I heard about this new 245(i) amendment, and I and my wife are going to make use of it.
However, I'd appreciate some advice before we take any steps, but I didn't find any
answers to my questions in all the 245(i) FAQs.

I have a green card, and my wife is now out of status. She came to the U.S. 3 years ago
with a F1 visa, and we got married in the U.S. The LIFE act says we should file I-130
before April, 30.

But we ALREADY HAVE filed I-130 in February, 1999 and haven't heard from INS since then.

My question is: should we file I-130 again before April, 30 or should we just wait until
INS processes our old application? If we need to file I-130 again, should we somehow
specify that we are legible for 245(i)?

Also, can her bank statements be the proof of her physical presence in the country on
December, 21st? If not, what else (except store receipts) can be used as a proof?

Thanks a lot for any advice. [email protected] Please remove 666 when replying
via email.
 
Old Jan 22nd 2001, 7:34 am
  #2  
Andy Platt
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The Shusterman's FAQ has the answer to your question:

"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). "

Note the text says between 1/14/98 and 4/30/01 so your petition counts.

As to the proof bit, I'm guessing a little here and an immigration attorney would be able
to give you better advice: My guess is that the specific proof of being here on December
10th is not as important as a pattern of proof that they have been here for some time and
therefore bank statements, store receipts, mail, bills, school records, etc, etc will
suffice if they show a pattern of being here before and after that date. Just a guess
though so if you find out from a better informed source - let us know!

Andy.

--
I'm not really here - it's just your warped imagination.

> Hi All,
>
> I heard about this new 245(i) amendment, and I and my wife are going to make use of it.
> However, I'd appreciate some advice before we take any steps, but I didn't find any
> answers to my questions in all the 245(i) FAQs.
>
> I have a green card, and my wife is now out of status. She came to the U.S. 3 years ago
> with a F1 visa, and we got married in the U.S. The LIFE act says we should file I-130
> before April, 30.
>
> But we ALREADY HAVE filed I-130 in February, 1999 and haven't heard from INS since then.
>
> My question is: should we file I-130 again before April, 30 or should we just wait until
> INS processes our old application? If we need to file I-130 again, should we somehow
> specify that we are legible for 245(i)?
>
> Also, can her bank statements be the proof of her physical presence in the country on
> December, 21st? If not, what else (except store receipts) can be used as a proof?
>
> Thanks a lot for any advice. [email protected] Please remove 666 when replying
> via email.
 
Old Jan 22nd 2001, 7:44 am
  #3  
paulgani
Guest
 
Posts: n/a
Default

I have a green card, and my wife is now out of status. She came
> to the U.S. 3 years ago with a F1 visa, and we got married in the U.S. The LIFE act says
> we should file I-130 before April, 30.
>
> But we ALREADY HAVE filed I-130 in February, 1999 and haven't heard from INS since then.

Did you ever receive a "NOA" Notice of Action, which lists your filing (priority) date? If
so, you have properly filed an I-130 prior to April 30, 2001. No additional filing
necessary to take advantage of 245(i).

> My question is: should we file I-130 again before April, 30 or should we just wait until
> INS processes our old application? If we need to file I-130 again, should we somehow
> specify that we are legible for 245(i)?

You should wait. However, you may or may not need to take advantage of
245(i). Here's why:

If your wife applies for AOS based on a family preference category (i.e. spouse of
permanent resident), then she must be in status, or else qualify for 245(i).

However, being out of status does NOT matter if your wife applies for AOS as the spouse of
a U.S. Citizen!

If you become a U.S. Citizen before her priority date becomes current, she can then file
for AOS immediately, and does not need to qualify for or pay the 245(i) fee.

However, if her priority date becomes current, and you are still a long time away from
naturalization, then she would need to file under 245(i) and pay the fee.

Paulgani
 
Old Jan 22nd 2001, 8:10 am
  #4  
Kavabanga
Guest
 
Posts: n/a
Default

:

>The Shusterman's FAQ has the answer to your question:
>
>"Q2. What must I do to qualify for §245(i)?

Yes, you're right. I must have missed this "between" part.

>As to the proof bit, I'm guessing a little here and an immigration attorney would be able
>to give you better advice: My guess is that the specific proof of being here on December
>10th is not as important as a pattern of proof that they have been here for some time and
>therefore bank statements, store receipts, mail, bills, school records, etc, etc will
>suffice if they show a pattern of being here before and after that date. Just a guess
>though so if you find out from a better informed source - let us know!
>
>Andy.

Just like I thought. Yep, we most likely will talk to an attorney. I'll let you know if I
learn something new.

Thanks muchly, Andy.
 
Old Jan 22nd 2001, 8:24 am
  #5  
Kavabanga
Guest
 
Posts: n/a
Default

in message

>> I have a green card, and my wife is now out of status. She came to the U.S. 3 years ago
>> with a F1 visa, and we got married in the U.S. The LIFE act says we should file I-130
>> before April, 30.
>>
>> But we ALREADY HAVE filed I-130 in February, 1999 and haven't heard from INS
>> since then.
>
>Did you ever receive a "NOA" Notice of Action, which lists your filing (priority) date?
>If so, you have properly filed an I-130 prior to April 30, 2001. No additional filing
>necessary to take advantage of 245(i).

We only received a confirmation that our application was accepted. The confirmation said
that "usual processing time is 240 days". I don't suppose that's what you mean?

>> My question is: should we file I-130 again before April, 30 or should we just wait
>> until INS processes our old application? If we need to file I-130 again, should we
>> somehow specify that we are legible for 245(i)?
>
>You should wait. However, you may or may not need to take advantage of
>245(i). Here's why:
>
>If your wife applies for AOS based on a family preference category (i.e. spouse of
>permanent resident), then she must be in status, or else qualify for 245(i).

As I understand it, one qualifies for 245(i), if he/she is a relative of a permanent
resident, and was phisically present in the U.S on Dec 21st, 2000. If I'm correct, our
case perfectly qualifies for 245(i), since my wife entered the U.S. legally, although now
her F1 is expired.

>
>However, being out of status does NOT matter if your wife applies for AOS as the spouse
>of a U.S. Citizen!
>
>If you become a U.S. Citizen before her priority date becomes current, she can then file
>for AOS immediately, and does not need to qualify for or pay the 245(i) fee.

I won't be a U.S. citizen at least until 2003. I thought 245(i) could help us get GC for
my wife sooner...

>
>However, if her priority date becomes current, and you are still a long time away from
>naturalization, then she would need to file under 245(i) and pay the fee.

Last question. As I said, we filed I-130 in Feb, 1999. Lets say, we get NOA from INS, and
her priority date becomes current. You're saying that then she would need to file under
245(i) and pay the fee... File what? Would she have to file something else after the I-130
comes through?

Thanks, Paulgani! [email protected] remove 666 if answering via email.
 
Old Jan 22nd 2001, 8:50 am
  #6  
paulgani
Guest
 
Posts: n/a
Default

>Did you ever receive a "NOA" Notice of Action, which lists your filing
> >(priority) date? If so, you have properly filed an I-130 prior to April
30,
> >2001. No additional filing necessary to take advantage of 245(i).
>
> We only received a confirmation that our application was accepted. The confirmation said
> that "usual processing time is 240 days". I don't suppose that's what you mean?

That's probably your NOA. It should list your wife's priority date (receipt date).

> >If you become a U.S. Citizen before her priority date becomes current,
she
> >can then file for AOS immediately, and does not need to qualify for or
pay
> >the 245(i) fee.
>
> I won't be a U.S. citizen at least until 2003. I thought 245(i) could help us get GC for
> my wife sooner...

No, it will not! 245(i) merely permits your (out of status) wife to *apply* for a green
card (by filing the I-485). However, she STILL must wait until her priority date becomes
current first!

> >However, if her priority date becomes current, and you are still a long
time
> >away from naturalization, then she would need to file under 245(i) and
pay
> >the fee.
>
> Last question. As I said, we filed I-130 in Feb, 1999. Lets say, we get NOA from INS,
> and her priority date becomes current. You're saying that then she would need to file
> under 245(i) and pay the fee... File what? Would she have to file something else after
> the I-130 comes through?

Normally, what happens once a priority date becomes current is that the alien in the U.S.
files the I-485, Adjustment of Status.

As of this date, only spouses of PRs with a priority date of Aug 1996 and before may file
the I-485! So, your wife still has a few years before she can even file the I-485! During
this time, she will remain in the U.S. illegally.

Let's say that in 2.5 years, your wife's priority date becomes current. By this time, you
would eligible to become a U.S. Citizen. You'd have 2 choices:

1 - have her file the I-485, plus pay the 245(i) $1000 penalty. 2 - wait until you become
a USC, then just have her file the I-485, no
245(i) fee necessary!

Paulgani
 
Old Jan 23rd 2001, 6:06 am
  #7  
ProducerHu
Guest
 
Posts: n/a
Default

Paulgani,

So he would not have to pay the fee if he is a USC? BUT hypothetically speaking, if
his wife would have entered illegally (without inspection) and he WAS a USC, then he
would still have to pay the fee correct?

In article <[email protected]>,

> > >Did you ever receive a "NOA" Notice of Action, which lists your
filing
> > >(priority) date? If so, you have properly filed an I-130 prior to
April
> 30,
> > >2001. No additional filing necessary to take advantage of 245(i).
> >
> > We only received a confirmation that our application was accepted. The confirmation
> > said that "usual processing time is 240 days". I don't suppose that's what you mean?
>
> That's probably your NOA. It should list your wife's priority date
(receipt
> date).
>
> > >If you become a U.S. Citizen before her priority date becomes
current,
> she
> > >can then file for AOS immediately, and does not need to qualify for
or
> pay
> > >the 245(i) fee.
> >
> > I won't be a U.S. citizen at least until 2003. I thought 245(i) could help us get GC
> > for my wife sooner...
>
> No, it will not! 245(i) merely permits your (out of status) wife to
*apply*
> for a green card (by filing the I-485). However, she STILL must wait
until
> her priority date becomes current first!
>
> > >However, if her priority date becomes current, and you are still a
long
> time
> > >away from naturalization, then she would need to file under 245(i)
and
> pay
> > >the fee.
> >
> > Last question. As I said, we filed I-130 in Feb, 1999. Lets say, we get NOA from INS,
> > and her priority date becomes
current.
> > You're saying that then she would need to file under 245(i) and pay the fee... File
> > what? Would she have to file something else after
the
> > I-130 comes through?
>
> Normally, what happens once a priority date becomes current is that
the
> alien in the U.S. files the I-485, Adjustment of Status.
>
> As of this date, only spouses of PRs with a priority date of Aug 1996
and
> before may file the I-485! So, your wife still has a few years before
she
> can even file the I-485! During this time, she will remain in the
U.S.
> illegally.
>
> Let's say that in 2.5 years, your wife's priority date becomes
current. By
> this time, you would eligible to become a U.S. Citizen. You'd have 2 choices:
>
> 1 - have her file the I-485, plus pay the 245(i) $1000 penalty. 2 - wait until you
> become a USC, then just have her file the I-485, no
> 245(i) fee necessary!
>
> Paulgani
 
Old Jan 23rd 2001, 7:16 am
  #8  
paulgani
Guest
 
Posts: n/a
Default

Paulgani,
>
> So he would not have to pay the fee if he is a USC? BUT hypothetically speaking, if
> his wife would have entered illegally (without inspection) and he WAS a USC, then
> he would still have to pay the fee correct?

Correct.

If you are an Immediate Relative (spouse, parent, child) of a U.S. Citizen, as long as
you entered legally, it doesn't matter if you overstayed your visa, violated status,
worked illegally, or whatever. You can still AOS without needing 245(i) and paying the
$1000 fine.

However, if you entered illegally, you would have to pay the $1000 fine.

If you are NOT the spouse, parent, or child of a U.S. Citizen, then you have to pay the
fine if you are not currently in status.

Paulgani
 
Old Jan 23rd 2001, 6:11 pm
  #9  
Ingo
Guest
 
Posts: n/a
Default

:
>
>>
>>Did you ever receive a "NOA" Notice of Action, which lists your filing (priority) date?
>>If so, you have properly filed an I-130 prior to April 30, 2001. No additional filing
>>necessary to take advantage of 245(i).
>
>We only received a confirmation that our application was accepted. The confirmation said
>that "usual processing time is 240 days". I don't suppose that's what you mean?

That's all you need. Ignore the 240 days - it actually takes two to three years
to process.

The new law indeed gives you a couple options:

- it was always possible for you to wait to become a US citizen, and then for her to
file an I-485.

- since she is illegal now, she normally would be ineligible to file an I-485 until you
are a citizen. This is one of the benefits of the law: she now can file her I-485 even
if she qualifies under Family 2A preference (that is, after she waited her five years or
so but before you become a citizen). If you for whatever reason do not want to become a
citizen, that can be an advantage.

- the best benefit is probably that she will now qualify for a V visa once it's been three
years since the I-130 was filed (it doesn't matter whether it is approved by then or
still pending). This will indeed give her a legal status faster.

Ingo

I am not a lawyer and this is not legal advice. For reliable advice, please consult with a
professional immigration attorney.

For further information, check the following frequently-requested links.

For many questions, you may find answers at http://travel.state.gov/visa_services.html
(Department of State)

or http://ins.usdoj.gov (INS).

For consular policies and visa reciprocity fees, find your consulate in
http://travel.state.gov/links.html

For DOL Faxback status information: http://workforcesecurity.doleta.gov/

For information on affidavit of support for marriage to US citizens (I-864), go to
http://travel.state.gov/i864gen.html and http://travel.state.gov/checklist.html

For information on entering the US as a K-1: http://www.k1poelist.com/

For poverty levels, see http://aspe.os.dhhs.gov/poverty/00poverty.htm

For information on H/L/O/P visa extensions at Dept. of State in St. Louis, MO, see
http://travel.state.gov/revals.html

For non-official information, check:

(When using these sites, and any Web sites, please watch out for privacy, as I do not know
all site operators.)

http://www.visalaw.com http://www.shusterman.com http://www.immigration.com
http://members.aol.com/MDUdall http://www.murthy.com/ http://www.getusavisa.com
http://greencard-lottery.virtualave.net/ http://www.jcvisa.com (H-1B)
http://www.h1bresources.com (marriage and fiancee) http://www.kamya.com/misc/ (marriage
and fiancee) http://www2.apex.net/users/thehydes http://www.formshome.com
http://www.workpermit.com

This is not an endorsement of any of these Web sites. I am not affiliated with any of the
Web site owners and do not receive nor accept payment in return for listing them, and
typically don't even know them.

(if believe you have a good immigration-related Web site and want your Web site listed
here, please e-mail me).
 
Old Feb 5th 2001, 1:06 pm
  #10  
Ralph Messana
Guest
 
Posts: n/a
Default

Andy Platt wrote:

> As to the proof bit, I'm guessing a little here and an immigration attorney would be
> able to give you better advice: My guess is that the specific proof of being here on
> December 10th is not as important as a pattern of proof that they have been here for
> some time and therefore bank statements, store receipts, mail, bills, school records,
> etc, etc will suffice if they show a pattern of being here before and after that date.
> Just a guess though so if you find out from a better informed source - let us know!
>

Yes! I would love to know what is considered proof. My fiance entered the US illegally on
Dec 19th 2000. Obviously, bills, school records and such are out of the question. Are
notarized statements from witnesses good enough?

>
> Andy.
>
> --
> I'm not really here - it's just your warped imagination.

> > Hi All,
> >
> > I heard about this new 245(i) amendment, and I and my wife are going to make use of
> > it. However, I'd appreciate some advice before we take any steps, but I didn't find
> > any answers to my questions in all the 245(i) FAQs.
> >
> > I have a green card, and my wife is now out of status. She came to the U.S. 3 years
> > ago with a F1 visa, and we got married in the U.S. The LIFE act says we should file
> > I-130 before April, 30.
> >
> > But we ALREADY HAVE filed I-130 in February, 1999 and haven't heard from INS
> > since then.
> >
> > My question is: should we file I-130 again before April, 30 or should we just wait
> > until INS processes our old application? If we need to file I-130 again, should we
> > somehow specify that we are legible for 245(i)?
> >
> > Also, can her bank statements be the proof of her physical presence in the country on
> > December, 21st? If not, what else (except store receipts) can be used as a proof?
> >
> > Thanks a lot for any advice. [email protected] Please remove 666 when replying via
> > email.
 
Old Feb 5th 2001, 4:46 pm
  #11  
Ingo
Guest
 
Posts: n/a
Default

:
>
>> As to the proof bit, I'm guessing a little here and an immigration attorney would be
>> able to give you better advice: My guess is that the specific proof of being here on
>> December 10th is not as important as a pattern of proof that they have been here for
>> some time and therefore bank statements, store receipts, mail, bills, school records,
>> etc, etc will suffice if they show a pattern of being here before and after that date.
>> Just a guess though so if you find out from a better informed source - let us know!
>>
>
>Yes! I would love to know what is considered proof. My fiance entered the US illegally on
>Dec 19th 2000. Obviously, bills, school records and such are out of the question. Are
>notarized statements from witnesses good enough?

Possibly, but it's impossible to tell with any reliability. I'd really say that you should
consult with an immigration attorney on this.

Ingo

I am not a lawyer and this is not legal advice. For reliable advice, please consult with a
professional immigration attorney.

For further information, check the following frequently-requested links.

For many questions, you may find answers at http://travel.state.gov/visa_services.html
(Department of State)

or http://ins.usdoj.gov (INS).

For consular policies and visa reciprocity fees, find your consulate in
http://travel.state.gov/links.html

For DOL Faxback status information: http://workforcesecurity.doleta.gov/

For information on affidavit of support for marriage to US citizens (I-864), go to
http://travel.state.gov/i864gen.html and http://travel.state.gov/checklist.html

For information on entering the US as a K-1: http://www.k1poelist.com/

For poverty levels, see http://aspe.os.dhhs.gov/poverty/00poverty.htm

For information on H/L/O/P visa extensions at Dept. of State in St. Louis, MO, see
http://travel.state.gov/revals.html

For non-official information, check:

(When using these sites, and any Web sites, please watch out for privacy, as I do not know
all site operators.)

http://www.visalaw.com http://www.shusterman.com http://www.immigration.com
http://members.aol.com/MDUdall http://www.murthy.com/ http://www.getusavisa.com
http://greencard-lottery.virtualave.net/ http://www.jcvisa.com (H-1B)
http://www.h1bresources.com (marriage and fiancee) http://www.kamya.com/misc/ (marriage
and fiancee) http://www2.apex.net/users/thehydes http://www.formshome.com
http://www.workpermit.com

This is not an endorsement of any of these Web sites. I am not affiliated with any of the
Web site owners and do not receive nor accept payment in return for listing them, and
typically don't even know them.

(if believe you have a good immigration-related Web site and want your Web site listed
here, please e-mail me).
 

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