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Section 245(i) - Experts please reply

Section 245(i) - Experts please reply

Old Jan 31st 2001, 7:55 am
  #1  
slskcan
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Hi,

Does Section 245(i) help only for people, who filed for their Labor certification on or
before April 30, 2001 and got their labor certification and immigrant visa petition
approved before their status (H1B or whatever) expires ?

How long does it take now a days in California (Sanfrancisco) to get labor certification
approved for EB2 category ?

Thanks for any help.
 
Old Feb 1st 2001, 7:56 am
  #2  
Ed MacNeil
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Hi yourself,

THIS SHOULD NOT BE CONSTRUED TO BE LEGAL ADVICE. I AM NOT A LAWYER. I DON'T EVEN PLAY
ONE ON TV!

Section 245(i) doesn't do anything for a person who is in status and will stay in status.
It only benefits those who go out of status by allowing them to adjust their status
without leaving the US and thus triggering the three or ten year bars.

Here is what 245(i) does and doesn't do.

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 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 sister’s
petition to become current). He will, however, have to use the priority date for his
mother’s 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 sister’s 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.

Did that clear out some of the fog?

Ed MacNeil Ancient Aviator North Hampton, NH, USA

[email protected] wrote:

> Hi,
>
> Does Section 245(i) help only for people, who filed for their Labor certification on or
> before April 30, 2001 and got their labor certification and immigrant visa petition
> approved before their status (H1B or whatever) expires ?
>
> How long does it take now a days in California (Sanfrancisco) to get labor certification
> approved for EB2 category ?
>
> Thanks for any help.
 

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