INA Section 245(i): INS Q and A: March 23, 2001

Section 245(i) Provision of the LIFE Act

Q1. What is the Section 245(i) provision of the Legal Immigration Family Equity Act (LIFE Act)?

A1. Section 245(i) allows certain persons, who have an immigrant visa immediately available but entered without inspection or otherwise violated their status and thus are ineligible to apply for adjustment of status in the United States, to apply if they pay a $1,000 penalty.

The LIFE Act temporarily extends the ability to preserve eligibility for this provision of law until April 30, 2001.

Use of Section 245(i) adjustment of status previously was limited to eligible individuals who were the beneficiary of a visa petition or labor certification application filed on or before January 14, 1998.

Q2. Who are the "certain persons" covered under Section 245(i) adjustment of status?

A2. Those covered by the provision are listed at Section 245(a) and (c) of the Immigration and Nationality Act and include individuals who:

Q3. Am I eligible for Section 245(i) adjustment of status under the LIFE Act?

A3. To be eligible, you must:

All petitions and applications must be properly filed and approvable when filed.
NOTE: There are some groups that may not be affected by any deadlines related to Section 245(i). The spouse or unmarried minor child of a U.S. citizen or the parent of a U.S. citizen child at least 21 years of age if he/she was inspected and lawfully admitted to the United States, but subsequently overstayed his/her authorized admission or worked without permission, does not need to apply for adjustment of status under Section 245(i). Also, certain persons who are eligible for certain employment-based immigrant visas and who were inspected and lawfully admitted to the United States, but have not violated their status or worked without permission for more than 180 days, do not have to apply for adjustment of status under Section 245(i).
Q4. What is the deadline for filing in order to preserve eligibility for adjustment of status using Section 245(i)?

A4. You have a very short window of opportunity, which ends April 30, 2001, to preserve your eligibility to file for adjustment of status under Section 245(i). You are not required to file for adjustment of status (Form I-485) on or before April 30, 2001. However, to preserve your eligibility to apply for adjustment using Section 245(i) you must:

All petitions and applications must be properly filed and approvable when filed.

Q5. What does "properly filed" mean for an immigrant visa petition?

A5. "Properly filed" for an immigrant visa petition means that:

Q6. What does "approvable when filed" mean for an immigrant visa petition?

A6. "Approvable when filed" for an immigrant visa petition means that:

Q7. What does "properly filed" mean for an application for labor certification?

A7. "Properly filed" for an application for labor certification means that it was filed with the DOL on or before April 30, 2001, according to DOL rules.

Q8. What does "approvable when filed" mean for an application for labor certification?

A8. "Approvable when filed" for an application for labor certification means that when the labor certification was filed with the DOL:

Q9. When do I submit my application for using Section 245(i) adjustment of status?

A9. You will be able to submit your application for adjustment of status under Section 245(i) at any later time when your immigrant petition is approved and a visa number is immediately available for you in accordance with the State Department’s monthly Visa Bulletin.

Q10. What should my adjustment of status application under Section 245(i) include?

A10. The Section 245(i) application should include:

Q11. Does everyone who files for adjustment of status using Section 245(i) have to pay the $1,000 penalty fee?

A11. The only applicants using Section 245(i) who do not have to pay the $1,000 penalty fee are those who, at the time they file their application for adjustment of status (Form I-485) under Section 245(i), are:

All other applicants for adjustment of status (Form I-485) under Section 245(i) must pay the $1,000 penalty fee.

Q12. Why do I have to prove that I was physically present in the United States on December 21, 2000?

A12. The law states that if you are the beneficiary of a visa petition or labor certification application that was filed after January 14, 1998, and on or before April 30, 2001, in order to be eligible for adjustment of status under Section 245(i) you also had to be physically present in the United States on the date the LIFE Act was enacted— December 21, 2000.

Q13. Do dependent family members also need to prove that they were physically present in the United States on December 21, 2000?

A13. No. The dependent spouse or children of the principal beneficiary do not need to prove that they were physically present in the United States on December 21, 2000. Only the principal beneficiary of the immigrant visa petition filed after January 14, 1998, and on or before April 30, 2001, is required to meet the physical presence requirement.

Q14. What kind of proof can I submit with my Section 245(i) adjustment-of-status application to demonstrate that I was in the United States on December 21, 2000?

A14. Government-issued documents are preferable as proof of physical presence, and INS and the Executive Office for Immigration Review (EOIR) documents have precedence over the records of other agencies (see Q15 and Q16). If there are no government-issued documents that demonstrate your physical presence in the United States on December 21, 2000, INS will accept and evaluate non-government issued documents as well (see Q17). You may submit photocopies of government-issued documents as well as non-government-issued documents that establish your physical presence.

You may have a single document that may suffice to establish your physical presence on December 21, 2000. But if you do not possess documentation that contains the exact date of December 21, 2000, you may need to submit several documents to prove that you were physically present in the United States prior to, as well as after December 21, 2000.

INS will evaluate all evidence on a case-by-case basis and will not accept a personal affidavit attesting to your physical presence on December 21, 2000, without requiring an interview or additional evidence to validate the affidavit.

Q15. Specifically, what kind of INS documentation can I submit to prove that I was physically present in the United States on December 21, 2000?

A15. Examples of acceptable INS documentation include, but are not limited to:

If you don’t have the document(s) but believe that a copy is already contained in your INS file, you may submit a statement as to the name and location of the issuing federal, state, or local government agency, the type of document and the date on which it was issued. When processing your case, INS will look in your INS file to find the document(s) you specify. You do not need to file a Freedom of Information Act (FOIA) request to obtain the actual document(s) from your INS file.

Q16. Specifically, what kind of other government documentation can I submit to prove that I was physically present in the United States on December 21, 2000?

A16. Examples of such other government documentation include, but are not limited to:

You will need to obtain the document(s) from other government (non-INS) agencies and submit photocopies of those records.

Q17. Specifically, what kind of non-government documentation can I submit to prove that I was physically in the United States on December 21, 2000?

A17. Examples of such non-government documentation include, but are not limited to:

Such non-government documentation must indicate your name, have been dated at the time it was issued, and bear the seal or signature of the issuing authority (if the documentation is normally signed or sealed), be issued on letterhead stationery, or be otherwise authenticated.

Q18. Am I still considered "illegal" if I have an immigrant visa petition or labor certification application filed on my behalf on or before April 30, 2001?

A18. The mere filing of a visa petition or application for a labor certification has no effect on your current immigration status or unlawful presence in the United States. If you are not in lawful status, you will continue to accrue periods of unlawful presence until you properly file your application for adjustment of status (Form I-485) under Section 245(i). When you file an application for adjustment of status, you stop accruing unlawful presence, but the periods of unlawful presence you accrued before your adjustment application are not eliminated.

Q19. Can I travel outside the United States if I have an immigrant visa petition or labor certification application filed on my behalf on or before April 30, 2001?

A19. If you are living illegally in the United States, the mere filing of a visa petition or application for a labor certification has no effect on your current immigration status or unlawful presence in the United States. If you leave the United States, you will have no authorization to re-enter the country.

When you file your application for adjustment of status (Form I-485), there is a way to obtain permission in advance to travel abroad by requesting "Advance Parole" from INS. However, if you have accrued more than 180 days of unlawful presence, you should not travel abroad because you then will be barred from admission to the United States for either three years or 10 years, even if you were granted "Advance Parole." Generally, the three-year bar to admission applies to those who were unlawfully present in the United States for more than 180 days and leave the country, and the 10-year bar applies to those who were unlawfully present in the United States for one year or more and leave the country.

Q20. Can I work in the United States if I have an immigrant visa petition or labor certification application filed on my behalf on or before April 30, 2001?

A20. No. The filing of a visa petition or application for a labor certification does not authorize you to work in the United States. You can apply for work authorization at the same time you file your application for adjustment of status (Form I-485) under Section 245(i) authorization by including a Form I-765 ("Application for Employment Authorization") and the $100 application fee.

Q21. If I have applied for the diversity visa lottery program with the Department of State on or before April 30, 2001, will I be able to preserve my eligibility to adjust my status using Section 245(i)?

A21. No. The mere filing of a diversity visa lottery program application with the Department of State on or before April 30, 2001, does not preserve your eligibility to adjust your status using Section 245(i). However, if you are the beneficiary of an immigrant visa petition or application for labor certification filed on or before April 30, 2001—and also have been physically present in the United States on December 21, 2000, if the qualifying visa petition or labor certification application was filed after January 14, 1998—you may use winning a diversity visa as a basis for adjustment of status using Section 245(i).

Q22. What other immigration benefits does the LIFE ACT include?

A22. Creates a new temporary "V" non-immigrant status to allow the spouses and minor children of lawful permanent residents—waiting more than three years for an immigrant visa based upon an immigrant petition filed on or before December 21, 2000—to be admitted to and work in the United States while they are waiting for a visa number (priority date) to be reached on the State Department’s visa waiting list.

Q23. Where can I get specific information about the LIFE Act and my own situation?

A23. You can get general information on the LIFE Act and updates as regulations are finalized to implement the various provisions of the law through the INS Web site www.ins.usdoj.gov and the toll-free customer telephone service 1-800-375-5283. Forms can be easily downloaded from the Web site, or requested by calling 1-800-375-5283.

For more specific information about your own particular situation, you should be cautious to avoid unscrupulous immigration practitioners and contact a licensed attorney or a legal service provider recognized by the Board of Immigration Appeals (see Internet site www.usdoj.gov/eoir under "Pro Bono Program").

– INS –



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