INA, SECTION 245(i): THE 2001 EXTENSION

THE LIFE ACT, THE LIFE ACT AMENDMENTS: OVER 400 Q & A

TABLE OF CONTENTS


DISCLAIMER

Author has made every effort to give you useful and accurate information in this publication. However, laws and procedures change frequently and are subject to differing interpretations. The author assumes no responsibility for omissions, inaccuracies, errors, or inconsistencies that may appear.

This publication is designed to provide helpful information in regard to the subject matter covered, for informational purposes only, and should not be considered legal advice.

The author shall have neither liability nor responsibility to any person or entity with respect to any loss or damage caused, or alleged to be caused, directly or indirectly, by the information contained herein.

SUMMARY

1. Almost all (not only illegal but also legal non-permanent resident) aliens and their present and (even) prospective family members are benefited from the Section 245(i).

2. An immigrant visa petition or a labor certification application is to be filed on or before the April, 30, 2001 deadline.

3. At the time of adjustment of status (that is, in most cases, long after the deadline), adjustment of status applicants are required to submit proof that they were in the US on December 21, 2000 (the date the law was signed).

4. The immigrant visa petition must meet the "approvable at the time of filing" standard.

5. The labor certification application must meet the "properly filed" standard.

6. At the time of adjustment of status, it is the applicant's burden to establish that the filing meets the above standards and the applicant is eligible for the grandfathering (even if the filing has been approved).

7. The adjudicators are advised to carefully review the evidence presented by the applicant and the petition or application to make their determination.

8. The mere filing of a grandfathering petition or application for a labor certification does not place the alien in a period of stay authorized by the INS.
   The fact that the alien is the beneficiary of a grandfathering immigrant visa petition or labor certification application is not a bar to the commencement of removal proceedings.

   However, according to the INS memorandum, if INS encounters an illegal alien, the fact that the alien is such a beneficiary will be an important factor to be considered in determining whether INS resources are best utilized by commencing removal proceedings against that particular alien.
   INS will carefully look (a) at the all the evidence presented by the alien and (b) at the grandfathering immigrant visa petition or application for labor certification to determine whether the filing is an important factor to be considered.
   The issue is whether or not the filing may ultimately allow the beneficiary to seek adjustment of status.

9. In both situations -- at the time of adjustment of status and if INS encounters an illegal alien -- the mere proof that an immigrant visa petition or a labor certification application was mailed on or before April 30, 2001 (or even already approved) is not sufficient.

   The beneficiary will be required to submit proof that:

   (a) the beneficiary was in the US on December 21, 2000,
   (b) the immigrant visa petition or labor certification application is not fraudulent, and
   (c) ultimately meets the "approvable at the time of filing" or "properly filed" standard.

   That practically means that the beneficiary and/or his attorney or representative must (not only file the petition or application but) prepare that proof in advance. The evidence should be as detailed, elaborated and extensive as possible.

   In general, the more steps (of the pending process) are passed on or before the April 30, 2001 deadline (that is, the sooner the petition or application is filed)  -- the more evidence can be collected, the more likely the filing will meet the standards.

THUS, WHAT DOES THIS PRACTICALLY MEAN "TO BE BENEFITED FROM SEC.245(i)"?

1. If INS encounters an illegal alien, the fact that the alien is a beneficiary of the Section 245(i) will be considered in determining whether INS resources are best utilized by commencing removal proceedings against that particular alien.

INS will carefully look (a) at the all the evidence presented by the alien and (b) at the
grandfathering immigrant visa petition or application for labor certification to determine whether the filing is to be considered.
If the filing may ultimately allow the beneficiary to seek adjustment of status, then the removal proceedings against that particular alien will probably not be commenced.

2. The privilege to adjust status in the U.S. (without leaving the country) based on:

(a) an employment-based immigrant visa petition filed after the April 30, 2001 deadline,
       based on
    a labor certification application filed on or before the April 30, 2001 deadline;

(b) an immigrant visa petition filed on or before the April 30, 2001 deadline.

3. Life-term privilege to adjust status in the U.S. (without leaving the country) based on:

(a) any immigrant visa petition filed on, before, or after the April 30, 2001 deadline;

(b) a DV lottery winning before or after the April 30, 2001 deadline.

Does this mean, in other words, that, if an alien starts a case before April 30, 2001 by filing a labor certification application, or an employment-based immigrant visa petition, or a family-based immigrant visa petition, then the alien (1) will probably not be removed (even if the alien is or becomes illegal) and will be able (2) to continue the case started on or before the April 30, 2001 or (3) to start later another (faster or more reliable) case to adjust status to the permanent residence?
Yes.

Does this mean that the April 30, 2001 deadline is crucial to aliens who have been unlawful present in the U.S. more than 179/364 days?
Yes.

Why?
Because almost all aliens who have been unlawful present in the U.S. more than 179/364 days are barred for three/ten years from reentering the U.S. after leaving.

Does this mean that while the road to the permanent residence is a multi-step process, it is the first step that let the alien to be benefited from the Section 245(i)?

What is this step?
Either:
1. Application for labor certification (LC) or
2. Petition for immigrant visa.

Will the alien pay the $1,000 penalty to INS at this step?
No.

Will the alien become a permanent resident at this step?
No.

Will the alien obtain an employment authorization document at this step?
No.

Will the alien obtain a travel document at this step?
No.

If any of the above (permanent residence, employment authorization document, travel document, payment of the $1,000 penalty) offered, promised, or guaranteed at this step, the alien is probably victim of fraud and may file a complaint with the Federal Trade Commission (FTC).

THE OPTIONS AN ALIEN HAS: FAMILY-BASED IMMIGRATION

1. To become a beneficiary of a family-based immigrant visa petition (filed on or before the April 30, 2001 deadline) based on an existing family relationship under (one or more of) the following categories:

Child

2. To be a (married or unmarried) child under 21 years old of a (legal or illegal) alien provided the alien already is or will be a beneficiary of a family-based immigrant visa petition (filed on or before the April 30, 2001 deadline) based on a family relationship under (one or more of) the categories listed in the paragraph one -- even if the petition is for an immediate relative of a U.S. citizen and/or the child is married and, thus, the child is not a derivative beneficiary of this petition (in general, there are winning possibilities even in this situation).

Spouse

3. To be the spouse of a (legal or illegal) alien provided the alien already is a beneficiary of a family-based immigrant visa petition (filed on or before the April 30, 2001 deadline) based on a family relationship under (one or more of) the categories listed in the paragraph one -- even if the petition is for an unmarried son or daughter or for an immediate relative of a U.S. citizen and, thus, the spouse is not a derivative beneficiary of this petition (in general, there are winning possibilities even in this situation).

4. To be the spouse of a (legal or illegal) alien provided the alien will become a beneficiary of a family-based immigrant visa petition (filed on or before the April 30, 2001 deadline) based on a family relationship under (one or more of) the following categories:

5. To be the spouse of a (legal or illegal) alien provided the alien will become a beneficiary of a family-based immigrant visa petition (filed on or before the April 30, 2001 deadline) based on a family relationship under the following category -- although the petition is for an immediate relative of a U.S. citizen and, thus, the spouse is not a derivative beneficiary of this petition (in general, there are winning possibilities even in this situation): Marriage

6. To marry a U.S. Permanent Resident who will file (on or before the April 30, 2001 deadline) an immigrant visa petition based on the marriage under the category:

7. To marry (on, before or after the April 30, 2001 deadline) a (legal or illegal) alien who already is a beneficiary of a family-based immigrant visa petition (filed on or before the April 30, 2001 deadline) based on a family relationship under (one or more of) the categories listed in the paragraph one -- even if the petition is for an unmarried son or daughter or for an immediate relative of a U.S. citizen and, thus, the spouse is not a derivative beneficiary of this petition (in general, there are winning possibilities even in this situation).

8. To marry a (legal or illegal) alien who will become a beneficiary of a family-based immigrant visa petition (filed on or before the April 30, 2001 deadline) based on a family relationship under (one or more of) the following categories:

9. To marry a (legal or illegal) alien who will become a beneficiary of a family-based immigrant visa petition (filed on or before the April 30, 2001 deadline) based on a family relationship under the following category -- although the petition is for an immediate relative of a U.S. citizen and, thus, the spouse is not a derivative beneficiary of this petition (in general, there are winning possibilities even in this situation): THE OPTIONS AN ALIEN HAS: EMPLOYMENT-BASED IMMIGRATION

Petition

1. To become a beneficiary of an employment-based immigrant visa petition (filed on or before the April 30, 2001 deadline) under (one or more of) the following categories:

2. To be an unmarried child under 21 years old of a (legal or illegal) alien provided the alien already is or will be a beneficiary of an employment-based immigrant visa petition (filed on or before the April 30, 2001 deadline) under (one or more of) the categories listed in the paragraph one.

3. To be the spouse of a (legal or illegal) alien provided the alien already is or will be a beneficiary of an employment-based immigrant visa petition (filed on or before the April 30, 2001 deadline) under (one or more of) the categories listed in the paragraph one.

4. To marry (on, before or after the April 30, 2001 deadline) a (legal or illegal) alien who already is or will be a beneficiary of an employment-based immigrant visa petition (filed on or before the April 30, 2001 deadline) under (one or more of) the categories listed in the paragraph one.

Application

5. To become a beneficiary of an application for labor certification (filed on or before the April 30, 2001 deadline).

6. To be an unmarried child under 21 years old of a (legal or illegal) alien who already is or will be a beneficiary of an application for labor certification (filed on or before the April 30, 2001 deadline).

7. To be the spouse of a (legal or illegal) alien who already is or will be a beneficiary of an application for labor certification (filed on or before the April 30, 2001 deadline).

8. To marry (on, before or after the April 30, 2001 deadline) a (legal or illegal) alien who already is or will be a beneficiary of an application for labor certification (filed on or before the April 30, 2001 deadline).

What if the marriage is found (by the adjudicator) to be entered into for immigration purposes? Will the alien spouse be able to take advantage of the Section 245(i), grandfathering and alien-based reading based on that filing?
No.

Will adjudicators be suspicious of such marriages?
This is not clear at this time. Probably, yes.

Will adjudicators carefully review the evidence presented by the parties to determine whether or not the marriage is entered into for immigration purposes?
This is not clear at this time. Probably, yes.

INTRODUCTION

What does "Section 245(i)" mean?
Section 245(i) is a Section of the Immigration and Nationality Act (INA).

Is Section 245(i) a subsection of Section 245?
Yes.

What does Section 245 allow?
It allows an alien to adjust his or her status to that of a lawful permanent resident (LPR) while in the United States if certain conditions are met.

Does adjustment of status mean obtaining green card?
Yes.

What are among these conditions?
Among these are that the alien have been inspected and admitted or paroled and not engaged in unauthorized employment.

What does Section 245(i) allow?
Section 245(i) allows certain aliens to adjust status under section 245 notwithstanding the fact that some of these conditions are not met.

How could aliens benefit from this Section?
Any alien willing to pay the additional fee specified in Section 245(i) who meet the other requirements of Section 245 can adjust status under that section.

Is the Section 245(i) a permanent provision of the law?
No.

HISTORY

When was the Section 245(i) added to the law?
In 1994.

Does this mean that the adjustment of status under conditions specified in the Section 245(i) of the Act was unavailable before October 1, 1994?
That is correct.

How long had the section been in effect?
Originally, from October 1, 1994 until September 30, 1997.

Was the Section 245(i) later extended?
Yes.

When?
1. On September 27, 1997, the Section was extended for three week (until October 23, 1997).
2. On October 23, 1997, the Section was extended again (for two weeks, until November 7, 1997).
3. On November 7, 1997, the Section was extended again (for one week, until November 14, 1997).
4. On November 14, 1997, the Section was extended again (for two months, until January 14, 1998).
5. On December 21, 2000 (almost three years after the January 14, 1998 expiration date), the Section was extended again (for more than four months, until April 30, 2001).

In other words, the Section 245(i) had been in effect from October 1, 1994 to January 14, 1998, and will be in effect to April 30, 2001?
Yes.

Under what law the Section 245(i) was extended till January 14, 1998?
Under the Departments of Commerce, State and Justice Appropriations Act for 1998, Pub. L. No 105-119, 111 Stat. 2440 (1997).

What is new in the recent extension?
Adjustment of status applicants are required to submit proof that they were "physically present" in the US on December 21, 2000 (the date the law was signed).

Does the "physical presence" requirement apply to the beneficiary of the immigrant visa petition or labor certification application filed on or before the April 30 deadline?
Yes.

Does the "physical presence" requirement apply to the derivative beneficiaries?
No.

MEMORANDUMS

Were there any additional quidances regarding the acceptance of applications for adjustment of status under Section 245(i)?
Yes.

Where were they?
In the following two memorandums:
1. INS Memorandum dated April 14, 1999 and
2. INS Memorandum dated June 10, 1999.

What was the subject?
"Accepting Applications for Adjustment of Status Under Section 245(i) of the Immigration and Nationality Act.”

For both memorandums?
Yes.

What is the purpose of the memorandums?
To provide additional guidance concerning the acceptance of applications for adjustment of status under Section 245(i) of the INA.

Why the second memorandum was needed?
The June 10, 1999 memorandum provides supplemental guidance to the April 14 memorandum.

What does the second memorandum clarify?
In particular, the memorandum addresses the adjustment of persons who have filed employment-based immigrant petitions (I-140s) and applications for labor certifications, for purposes of "grandfathering" under section 245(i) of the Act.

Does this mean that the second memorandum addresses issues unique to employment-based petitions and makes one set of clarifications to the April 14 memorandum?
Yes.

Concurrence

Does the Office of Field Operations concur with both the memorandums?
Yes.

Does both the memorandums have the concurrence of the Service's Office of Field Operations?
Yes.

Applicability to the April 30, 2001 Deadline

Are the general policy outlined in the memorandums applicable only to the January 14, 1998 deadline?
No.

Does this mean that the general policy outlined in the memorandums applicable to the both January 14, 1998 and April 30, 2001 deadlines?
Yes.

Does this mean that the general policy outlined in the memorandums applicable to the adjudication under the LIFE Act?
Yes.

Even though the memorandums issued before the LIFE Act?
Yes.

Why?
Because the LIFE Act extends the Section 245(i), while the memorandums clarify the conceptions of the Section 245(i) itself.

Are the general policy outlined in the memorandums applicable to the adjudication of both family and employment-based immigrant petitions?
Yes.

Does this mean that the portions of the memorandums relating to "alien-based" reading, "approvable when filed", and the effects of "grandfathering" remain in effect and are applicable to both family and employment-based immigrant petitions?
Yes.

RECENT EXTENSION

Under what laws was the Section 245(i) extended till April 30, 2001?
1. The Legal Immigration and Family Equity Act or LIFE Act.
2. LIFE Act Amendments.

The LIFE Act

How was the Legal Immigration and Family Equity Act passed by Congress?
As part of the H.R. 5548, "Making Appropriations for the Departments of Commerce, Justice, and State, the Judiciary, and related agencies for the fiscal year ending September 30, 2001, and for other purposes.”

What is the name of the part?
Title XI, Encouraging Immigrant Family Reunification.

How was H.R. 5548 enacted?
By reference in H.R. 4942, "Making appropriations for the government of the District of Columbia and other activities chargeable in whole or in part against the revenues of said District for the fiscal year ending September 30, 2001, and for other purposes”, Pub. L. No. 106-553.

When was the H.R. 4942 passed by Congress?
On December 15, 2000.

When was the H.R. 4942 signed by the President?
On December 21, 2000.

LIFE Act Amendments

How was LIFE Act Amendments passed by Congress?
As part of the H.Rept. 106-1033, "Making Omnibus Consolidated and Emergency Supplemental Appropriations for Fiscal Year 2001” (to accompany H.R. 4577).

What is the name of the part?
Title XV, Miscellaneous Appropriations of 2001.

How was H.Rept. 106-1033 enacted?
By reference in H.R. 4577, "Making appropriations for the Departments of Labor, Health and Human Services, and Education, and related agencies for the fiscal year ending September 30, 2001, and for other purposes”, Pub. L. No. 106-554.

When was the H.R. 4577 passed by Congress?
On December 15, 2000.

When was the H.R. 4577 signed by the President?
On December 21, 2000.

APRIL 30, 2001 DEADLINE

Who May Use Section 245(i)?
In order to take advantage of Section 245(i) after April 30, 2001, an alien must be beneficiary of either:
1. An immigrant visa petition filed with the Attorney General on or before April 30, 2001 or
2. An application for a labor certification filed with the Secretary of Labor on or before that date.

What does "immigrant visa petition" include?
INS forms:
   I-130. Petition for Alien Relative.
   I-140. Immigrant Petition for Alien Worker.
   I-360. Petition for Amerasian, Widow(eR), or Special Immigrant.
   I-526. Immigrant Petition by Alien Entrepreneur.

What does "application for a labor certification" include?
U.S. DOL ETA form:
   ETA-750. Application for Alien Employment Certification.

What does "filed with the Attorney General" practically mean?
It means "filed with U.S. Immigration and Naturalization Service (INS)".

What does "filed pursuant to the regulations of the Secretary of Labor" practically mean?
It means "filed with State Department of Labor (DOL)".

Does this mean that immigrant visa petitions are filed with INS while labor certification applications are filed with DOL?
Yes.

Does the April 30, 2001 deadline mean that in order to take advantage of Section 245(i), the alien must file the adjustment of status application on or before the deadline?
No.

Does this mean that in order to take advantage of Section 245(i), the alien must stay in the U.S. from the time of filing an immigrant visa petition or labor certification application to the time of filing the adjustment of status application?
No.

Does this mean that by filing an immigrant visa petition or labor certification application on or before the April 30, 2001 deadline, the alien obtains a privilege to enter the U.S. after leaving?
No.

Does this mean that if the alien is unable to enter the U.S. after leaving, the alien effectively loses the privilege to adjust status under the Section 245(i)?
Yes.

Is there a time frame to file the adjustment of status application after the immigrant visa petition or labor certification application is filed?
No.

Does this mean that by filing an immigrant visa petition or labor certification application on or before the April 30, 2001 deadline, the alien becomes a life-term beneficiary of the Section 245(i)?
Yes.

Does the April 30, 2001 deadline mean that in order to take advantage of Section 245(i), the alien must file an immigrant visa petition or labor certification application on or before the deadline?
The deadline means this and much more.

"GRANDFATHERING"

Does the April 30, 2001 deadline mean that in order to take advantage of the Section 245(i), (a) the alien must file either the immigrant visa petition or labor certification application on or before the deadline and (b) the pre-May 1st filing will be "grandfathered” to allow the alien to use 245(i) to adjust status on the basis of that filing even if the adjustment of status application is filed after the April 30th deadline?
The deadline means this and much more.

"ALIEN-BASED READING"

So, what does the April 30, 2001 mean?
The deadline means that in order to take advantage of Section 245(i),
       (a) the alien must file either the immigrant visa petition or labor certification application on or before the deadline and
       (b) the pre-May 1st filing will allow the alien to use 245(i) to adjust status on the basis of a different (post-April 30th) filing even if the adjustment of status application is filed after the April 30th deadline.

Does this mean that Section 245(i) requires the grandfathering petition or application to have been filed on or before April 30, 2001 but not the petition or application that is to be used as the basis for adjustment?
Yes.

Does this mean that it is the alien beneficiary (of an immigrant visa petition or a labor certification filed on or before April 30, 2001) who is "grandfathered" and thus able to adjust status under 245(i)?
Yes.

How is this conception called?
The "alien-based reading”.

What does the "alien-based" reading of Section 245(i) mean?
Under this reading, the pre-April 30th filing allows the alien to use 245(i) to adjust status on the basis of a different filing.

Does this mean that the pre-April 30th filing allows the alien to use 245(i) as the "vehicle” for adjustment, but the basis for the adjustment may be obtained through a different filing?
Yes.

Does different filing mean a later filing of the same visa category only?
No.

Does different filing mean a later filing of either the same or different visa category?
Yes.

Does this mean that, for example, a person who had an employment-based petition or a labor certification application filed on or before April 30, 2001 may later adjust status based upon another employment-based petition or family-based petition or diversity visa lottery "winning”?
Yes.

Does this mean that, for example, a person who had a family-based petition filed on or before April 30 2001 may later adjust status based upon an approved employment-based petition or diversity visa lottery "winning”?
Yes.

Which government document officially, adopts the "alien-based" reading of Section 245(i)?
The April 14, 1999 INS memorandum.

Which categories of immigration violators are unconditionally benefited from the Section 245(i)?
An alien who unlawfully entered the U.S. (that is entered without inspection - EWIs).

Which categories of immigration violators are benefited from this Section, unless the alien is ordinary eligible for adjustment of status under another section of law (as described in the next paragraph) and thus is not benefited from the Section 245(i)?
1. An alien who is in unlawful immigration status on the date of filing the application for adjustment of status.
2. An alien who is in lawful immigration status on the date of filing the application for adjustment of status but who has failed (other than through no fault of his own or for technical reasons) to maintain continuously a lawful status since entry into the U.S.
3. An alien who was employed while the alien was not authorized to be employed or who has otherwise violated the terms of a nonimmigrant visa.

Which categories of immigration violators ordinary eligible for adjustment of status under another section of law and thus are not benefited from the Section 245(i)?
1. An immediate relative of a U.S. citizen:
   - parent,
   - spouse,
   - widow(er),
   - a minor child (that is unmarried child under 21 years old).

Also including a former alien fiance(e) of a U.S. citizen who entered the U.S. on a K-1 visa solely to conclude a valid marriage with and who married the petitioning US citizen within ninety days after admission.

Also including a minor child of a former alien fiance(e) of a U.S. citizen who entered the U.S. on a K-2 visa accompanying or following to join the alien parent who married the petitioning US citizen within ninety days after admission.

2. An alien who is a certain special immigrant:
  - certain foreign medical graduate,
  - certain nonimmigrant employee of a qualifying international organization,
  - certain juvenile court dependent,
  - certain Armed Forces member,
  - a spouse and a child of such alien.

Which categories of aliens ordinary ineligible for adjustment of status are benefited from Section 245(i) (regardless of whether or not the alien is immigration violator)?
1. An alien crewman (that is an alien who entered the US with a D visa).
2. An alien admitted in transit without visa.
3. An alien admitted as a nonimmigrant visitor without a visa under the Visa Waiver Pilot Program (renamed to Visa Waiver Permanent Program).
4. An alien who was admitted to Guam as a visitor under the Guam Visa Waiver Program.

Which categories of immigration violators are not benefited from the Section 245(i)?
1. An alien fiance(e) of a U.S. citizen who entered the U.S. on a K-1 visa solely to conclude a valid marriage with but who failed to marry the petitioning US citizen within ninety days after admission.
2. A minor child of an alien fiance(e) of a U.S. citizen who entered the U.S. on a K-2 visa accompanying or following to join the alien parent described in paragraph 1.

Which categories of aliens ordinary ineligible for adjustment of status are not benefited from the Section 245(i) (regardless of whether or not the alien is immigration violator)?
1. An alien who was an (J-1) exchange visitor or a (J-2) family member (spouse and minor child) and who is subject to the two-year foreign residence requirement and have not complied with or been granted a waiver of the requirement.

2. An alien who has a status of witness or informant in criminal matter (S-5) or in counterterrorism matter (S-6), or is a (S-7) family member (spouse and minor child), unless the alien has received
permission from the INS (and in some cases from U.S. DOS) to apply for the adjustment of status.

3. An alien who has an A, E or G nonimmigrant status, or has an occupation which would allow the alien to have this status, unless the alien complete Form I-508 (I-508F for French nationals) to wave diplomatic rights, privileges and immunities, and if the alien is an A or G nonimmigrant, unless the alien submit a complete Form I-566.

4. An alien who is seeking to receive an immigrant visa on the basis of a marriage which was entered into during the period during which administrative or judicial proceedings are pending regarding the alien's right to be admitted or remain in the U.S. -- unless the alien establishes by clear and convincing evidence to the satisfaction of the INS that:
   - the marriage was entered into in good faith,
   - in accordance with the laws of the place where the marriage took place,
   - the marriage was not entered into for the purpose of procuring the alien's admission as an immigrant,
   - no fee or other consideration was given (other than a fee or other consideration to an attorney for assistance in preparation of a lawful petition) for the filing of a petition with respect to the alien, alien spouse or alien son or daughter.

5. An alien lawfully admitted to the U.S. for permanent residence on a conditional basis (unless the conditional status is terminated):
   - an alien spouse of a U.S. citizen lawfully admitted to the U.S. for permanent residence on a conditional basis, alien son or daughter,
   - an alien entrepreneur lawfully admitted to the U.S. for permanent residence on a conditional basis, alien spouse, and alien child.

Which categories of aliens ordinary eligible for adjustment of status as derivative family members are benefited from the Section 245(i)?
The "after-acquired" children and spouses.

Which categories of aliens ordinary ineligible for adjustment of status as derivative family members are benefited from the Section 245(i)?
1. "Aged-out" children.
2. The "after-divorced" spouses.

Which categories of aliens are ordinary ineligible for visas or admission and thus are not benefited from this Section (unless a waiver is obtained)?
1. Health-related grounds:
   - communicable disease of public health significance,
   - physical or mental disorder,
   - drug abuser or drug addict.

2. Criminal and related grounds:
   - conviction or admission of committing of certain crimes:
       - moral turpitude,
       - controlled substances,
   - multiple criminal convictions,
   - controlled substance traffickers
   - prostitution and commercialized vice,
   - serious criminal activity who have asserted immunity from prosecution,
   - severe violations of religious freedom by a foreign government official.

3. Security and related grounds:
   - espionage
   - sabotage
   - export from the U.S. of goods, technology, or sensitive information,
   - opposition to, or the control or overthrow of, the Government of the U.S. by force, violence, or other unlawful means.
   - terrorist activities,
   - potentially serious adverse foreign policy consequences for the U.S.,
   - membership in a totalitarian party,
   - participation in nazi persecutions or genocide.

4. Public charge.

5. Labor certification and qualifications for certain immigrants:

6. Illegal entrants and immigration violators:
   - failure to attend (without reasonable cause) a proceeding to determine the alien's inadmissibility or deportability,
   - misrepresentation:
       - fraud or willfully misrepresentation of material facts,
       - falsely claimed citizenship,
       - stowaway,
       - smuggler,
       - subject of civil penalty,
       - student visa abuser.

7. Ineligibility to citizenship.

8. Aliens previously removed.

9. Miscellaneous:
   - practicing polygamists,
   - guardian required to accompany helpless alien,
   - international child abduction,
   - unlawful voters,
   - former citizens who renounced citizenship to avoid taxation.

Are there exceptions?
Yes.

Is a waiver available for certain grounds?
Yes.

What if a person is in a lawful status now and ordinary eligible for adjustment of status?
Is it reasonable for him or her to file an immigrant visa petition or labor certification before the April 30, deadline?
Yes.

Why?
The pre-May 1st filing will allow the alien and/or his/her family member to adjust status if and when he or she becomes ineligible to adjust status.

How could it happen?
By many reasons.

How many (legal and illegal) aliens will benefit from this Section?
Probably, hundreds of thousands, possible a million or more.

BARS TO ADMISSION

Why is Section 245(i) so important at this time?
There are three and ten-year bars to admission.

What does the three-year bar to admission mean?
It means that almost all aliens who have been unlawful present in the U.S. more than 179 days are barred for three years from reentering the U.S. after leaving.

What does the ten-year bar to admission mean?
It means that almost all aliens who have been unlawful present in the U.S. more than 364 days are barred for ten years from reentering the U.S. after leaving.

Under what Section of law illegal aliens are barred for three years from reentering the US after leaving?
Under Section 212(a)(9)(B)(i)(I) of the Immigration and Nationality Act (INA).

Under what Section of law illegal aliens are barred for ten years from reentering the US after leaving as a direct result of the unlawful presence?
1. Under Section 212(a)(9)(B)(i)(II) of the Immigration and Nationality Act.
2. Under Section 212(a)(9)(C) of the Immigration and Nationality Act.

Are there any exceptions?
Yes.

IMMEDIATE RELATIVES

What are the exceptions?
Immediate relatives of U.S. citizens who entered the U.S. legally are eligible to adjust their status (and obtain their green card) under another Section of law.

Does this mean that immediate relatives of U.S. citizens could still apply for adjustment of status even if Section 245(i) was not extended?
Yes.

Does this mean that immediate relatives of U.S. citizens who entered the U.S. without inspection are eligible to adjust their status only under Section 245(i)?
Yes.

Does this mean that immediate relatives of U.S. citizens who worked in the U.S. without authorization are eligible to adjust their status only under Section 245(i)?
No. They can do it under another Section of law.

Who in this case concerns to the nearest relatives?
1. Spouses.
2. Unmarried children under age twenty-one.
3. Parents (of a U.S. citizen over age twenty-one).

PENALTY

Do immediate relatives have any other advantages before illegal aliens who adjust their status under Section 245(i)?
Yes.

What are they?
Immediate relatives are eligible to adjust their status without paying the $1,000 fine.

In contrast, illegal aliens who adjust their status under Section 245(i) must pay a penalty of $1,000?
Yes.

So, there is a penalty to adjust status under Section 245(i)?
Yes. $1,000 per application filed on or after December 29, 1996.

So, it is not only a penalty but also a price for the advantage of being able not having to depart the United States for an immigrant visa?
Yes.

Is the penalty to be paid by every applicant?
No.

Does this mean that there are exceptions?
Yes.

Is the penalty to be paid at the time of filing the immigrant visa petition or labor certification application?
No.

Is the penalty to be paid at the time of filing the adjustment of status application?
Yes.

What is the name of adjustment of status application?
INS Form I-485. Application to Register Permanent Residence or Adjust Status.

Is there a special form to be filed by the Section 245(i) beneficiaries along with adjustment of status application?
Yes.

What is the name of the form?
Supplement A to Form I-485.

Is the penalty to be paid at the time of filing the Supplement A to Form I-485?
Yes.

Does this mean that the penalty is (for most applicants) to be paid after the April 30th deadline?
Yes.

Can the penalty be changed at the time of adjustment of status?
Yes.

Will the penalty probably be increased?
Yes.

Is there a filing fee in addition to the penalty?
Yes.

What is the filing fee at this time?
$220 -- for applicants 14 years and older.
$160 -- for applicants under 14 years of age.

Can the filing fee be changed at the time of adjustment of status?
Yes.

Will the filing fee probably be increased?
Yes.

INS, DOL v. DOS

What types of petitions and applications result in grandfathering?
1. Immigrant visa petitions filed with the INS.
2. Labor certification applications filed with the DOL.

May an immigrant visa application filed with the U.S. Department of State (DOS) result in grandfathering?
No.

Why?
Applications filed with the DOS do not meet the Section 245(i) definition of a petition "filed with the Attorney General" or a labor certification application "filed pursuant to the regulations of the Secretary of Labor."

May diversity immigrant application result in grandfathering?
No.

Why?
Because diversity immigrant applications are filed with DOS.

May (on another hand) an immigrant visa petition or labor certification support
a diversity immigrant adjustment of status application?
Yes.

Why?
In this situation, the immigrant visa petition and labor certification application (but not the diversity immigrant application) result in grandfathering.

Are the "diversity immigrant application" and "diversity immigrant adjustment of status application" not the same?
That is correct.

What is the difference?
The "diversity immigrant application" is filed to participate in the diversity visa (greencard) lottery. In contrast, the "diversity immigrant adjustment of status application" is filed by a selected lottery applicant (lottery "winner”) or his/her family member to adjust status to permanent residence.

DATE OF SUBMISSION AND APPROVAL

Does this mean that under the alien-based reading, the status may be adjusted on the basis of either an immigrant visa petition submitted and approved before or after April 30, 2001, or a diversity visa application (submitted before or after April 30, 2001)?
Yes.

Why the labor certification application is not included?
Because it always follows by the immigrant visa petition.

UNADJUDICATED FILINGS

What if the original immigrant visa petition or labor certification application that is claimed as the basis for grandfathering under section 245(i) has not yet been adjudicated?
Will the alien-based reading apply?
Yes?

Does this mean that the alien will be "grandfathered" and thus able to adjust status under 245(i)?
Yes.
Does this mean that unadjudicated cases may meet the "approvable at the time of filing" and "properly filed” standards?
Yes.

Does "unadjudicated” mean "pending for adjudication”?
Yes.

Does "unadjudicated filing” mean "filing that has not yet been acted on by INS or DOL”?
Yes.

FILINGS THAT HAVE NOT YET BECAME CURRENT

What if the original immigrant visa petition or labor certification application that is claimed as the basis for grandfathering under section 245(i) has not yet been became current?
Will the alien-based reading apply?
Yes?

Does this mean that the alien will be "grandfathered" and thus able to adjust status under 245(i)?
Yes.

FILINGS THAT ARE DEFICIENT

What if the original immigrant visa petition or labor certification application that is claimed as the basis for grandfathering under section 245(i) is deficient?

May the alien-based reading apply?
Yes.

Will it always apply?
No.

Does the answer depends on the type of the deficiency?
Yes.

Does this mean that in some and only in some cases the alien will be "grandfathered" and thus able to adjust status under 245(i)?
Yes.

Filings submitted without fee

Are filings submitted without fee considered deficient?
Yes.

May the alien-based reading apply to this type of the deficiency?
No.

Does this mean that the alien will not be "grandfathered" and thus will not be able to adjust status under 245(i)?
That is correct.

Fraudulent filings

Are fraudulent filings considered deficient?
Yes.

May the alien-based reading apply to this type of the deficiency?
No.

Does this mean that the alien will not be "grandfathered" and thus will not be able to adjust status under 245(i)?
That is correct.

Filings submitted without any basis in law or fact

Are filings submitted without any basis in law or fact considered deficient?
Yes.

May the alien-based reading apply to this type of the deficiency?
No.

Does this mean that the alien will not be "grandfathered" and thus will not be able to adjust status under 245(i)?
That is correct.

Is there a definition of "filings submitted without any basis in law or fact"?
No.

Does this mean that interpretation is up to the immigration officer?
Yes.

Filings deficient because INS requires additional information

What if INS requires additional information?
Is the filing considered deficient?
Yes.

May the alien-based reading apply to this type of the deficiency?
Yes.

Does this mean that the alien will be "grandfathered" and thus able to adjust status under 245(i)?
Yes.

Would the petitioner ordinarily be allowed to provide the additional information?
Yes. Pursuant to 8 C.F.R. 103.2(b)(8).

May the required additional information include vital records (birth, marriage, divorce, death certificates, etc.)?
Yes.

Will the alien be "grandfathered" only after the required additional information is submitted?
Yes.

Will the alien always be "grandfathered" if the required additional information is submitted?
No.

What else will be needed?
INS should also conclude that the petition was "approvable at the time of filing".

Does this mean that the case is sufficient for grandfathering purposes once the additional information is submitted and the INS concludes that the petition was "approvable at the time of filing"?
Yes.

Filings deficient because DOL requires additional information

What if DOL requires additional information?
May the filing be considered deficient?
It is not clear at this time. Probably, yes.

Will the filing be always considered deficient?
It is not clear at this time. Probably, no.

Must adjudicators look at the type of the required additional information to determine whether the alien continues to be a beneficiary of that application for "grandfathering" purposes?
It is not clear at this time. Probably, yes.

What is the issue?
The issue is whether or not the application meets the "properly filed" standard (notwithstanding the absence of the required additional information).

Does this mean that the absence of the required additional information makes the labor certification application deficient when and only when without that additional information the application does not meet the "properly filed" standard?
It is not clear at this time. Probably, yes.

May the alien-based reading apply to this type of the deficiency?
No.

Does this mean that if without the additional information the application does not meet the "properly filed" standard, the alien will not be "grandfathered" and thus will not be able to adjust status under 245(i)?
Yes.

Would the applicant ordinarily be allowed to provide the additional information?
It is not clear at this time.

Does the answer depends on the type of the required additional information?
It is not clear at this time. Probably, yes.

When will the applicant be allowed to provide the additional information?
It is not clear at this time. Probably when it is not clear that without the additional information the application does not meet the "properly filed" standard.

Does this mean that if it is clear that without the additional information the application does not meet the "properly filed" standard, the applicant will not be allowed to provide the additional information?
It is not clear at this time. Probably, yes.

Does this mean that if it is clear that even without the additional information the application cannot meet the "properly filed" standard, the applicant will be allowed to provide the additional information?
It is not clear at this time. Probably, yes.

Will the alien be "grandfathered" only after the required additional information is submitted?
It is not clear at this time.

Does this mean that if it is clear that even without the additional information the application cannot meet the "properly filed" standard, the additional information will not be even required?
It is not clear at this time. Probably, yes.

Does this mean that interpretation is up to the adjudicator?
Yes.

What does "probably, yes”, "probably, no” mean?
It means "probably yes/no with most adjudicators”.

Does this mean that probably some of adjudicators will have different interpretations?
Yes.

Will the alien always be "grandfathered" if the applicant is allowed to provide the additional information and the additional information is submitted?
No.

What else will be needed?
INS should also conclude that the labor certification application does meet the "properly filed" standard.

Why are there so many "not defined” situations with the labor certification applications (unlike immigrant visa petitions)?
Because the term "properly filed" (used in reference to labor certification applications) is much less defined than term "approvable at the time of filing" (used in reference to immigrant visa petitions).

USED FILINGS

What if the original immigrant visa petition or labor certification application that is claimed as the basis for grandfathering under section 245(i) has already been used as the basis for admission as an immigrant or for adjustment of status?
Will the alien-based reading apply?
No?

Does this mean that once an immigrant visa petition or labor certification application has been used as the basis for admission as an immigrant or for adjustment of status, the underlying visa petition or labor certification cannot be used again?
Yes.

Does this mean that even though such a petition or application was filed on or before the April 30 cut-off date, it cannot be used as the basis for Section 245(i) grandfathering?
Yes.

Does this mean that each grandfathered beneficiary is entitled to one Section 245(i) filing, and may adjust only once under Section 245(i) based on the pre-April 30 filing?
Yes.

Do beneficiaries include derivative (accompanying and following to join) beneficiaries?
Yes.

Are adjudicators advised to be careful to distinguish between used and unused visa petitions and labor certifications?
Yes.

ADVERSE ACTIONS

What do adverse actions include?
They include denial, revocation and withdrawal.

What if the original immigrant visa petition or labor certification application that is claimed as the basis for grandfathering under section 245(i) has been denied, revoked or withdrawn?
May the alien-based reading apply?
Yes.

Does this mean that even denied, revoked and withdrawn immigrant visa petitions may meet the "approvable at the time of filing" standard?
Yes.

Does this mean that even denied, revoked and withdrawn labor certification applications may meet the "properly filed" standard?
Yes.

Will the alien-based reading always apply?
No.

Must adjudicators be careful to look at the reasons for the adverse action to determine whether the alien continues to be a beneficiary of the immigrant visa petition for "grandfathering" purposes?
Yes.

What is the issue?
The issue is whether or not the petition meets "approvable at the time of filing" standard with INS.

Must adjudicators look at the reasons for the adverse action to determine whether the alien continues to be a beneficiary of the labor certification application for "grandfathering" purposes?
Yes.

What is the issue?
The issue is whether or not the application does meet "properly filed" standard with DOL.

Withdrawal v. denial

Is a former beneficiary of a withdrawn filing more likely to be grandfathered for the purpose of Section 245(i) than a former beneficiary of a denied filing?
Yes.

Are adjudicators advised to be aware of situations where the alien withdraws a petition or application knowing that the petition will be denied?
Yes.

Are adjudicators advised in such cases to apply the standards on denials based on merits?
Yes.

Adverse actions based on change in circumstances

What if an immigrant visa petition or labor certification application has been adverted due to circumstances arising after the petition or application was filed?
Will INS probably continue to regard the alien as the "beneficiary" for the purposes of grandfathering under Section 245(I)?
Yes.

Does this mean that if the adverse action takes place because of a change in circumstances, the immigrant visa petition is likely to meet the "approvable at the time of filing" standard?
Yes.

Does "likely to meet the "approvable at the time of filing" standard” mean "always meets the "approvable at the time of filing" standard?
No.

Does this mean that if the adverse action takes place because of a change in circumstances, the immigrant visa petition always meets the "approvable at the time of filing" standard?
No.

Does this mean that if the adverse action takes place because of a change in circumstances, the labor certification application is likely to meet the "properly filed" standard?
Yes.

Does "likely to meet the "properly filed" standard mean "always meets the "properly filed" standard”?
No.

Does this mean that if the adverse action takes place because of a change in circumstances, the labor certification application always meets the "properly filed" standard?
No.

Does this mean that the final decision is always up to the adjudicators?
Yes.

Do changed circumstances generally relate to factors beyond the alien's control?
Yes.

Does this mean that changed circumstances must relate to factors beyond the alien's control?
It is not clear at this time. Probably, no.

Does this mean that INS may continue to regard the alien as the "beneficiary" for the purposes of grandfathering under Section 245(i) even if changed circumstances not relate to factors beyond the alien's control?
It is not clear at this time. Probably, yes.

Examples of changed circumstances beyond the alien's control

Do changed circumstances beyond the alien's control include the alien beneficiary's employer going out of business?
Yes.

Do changed circumstances beyond the alien's control include the alien beneficiary's employer experiences a reversal and no longer needs the services of the alien?
Yes.

Do changed circumstances beyond the alien's control include the death of a petitioning spouse?
Yes.

Do changed circumstances beyond the alien's control include the derivative child ages out?
Yes.

Adverse actions not based on change in circumstances

What if an immigrant visa petition or labor certification application has been adverted due to circumstances not arising after the petition or application was filed?
Will INS probably continue to regard the alien as the "beneficiary" for the purposes of grandfathering under Section 245(i)?
No.

Do "circumstances not arising after the petition or application was filed" mean "the merits of the petition or application itself at the time of filing"?
Yes.

Petition

What if there is no change in circumstances?
Will the adverse action likely preclude a finding that the petition was approvable at the time of filed?
Yes.

Why?
Because the reasons for adverse action are likely to relate to eligibility at the time of filing.

Does "likely preclude a finding that the petition was approvable at the time of filing” mean "is to be always considered not approvable at the time of filing”?
No.

Does "the reasons for adverse action are likely to relate to eligibility at the time of filing” mean "the reasons for adverse action are always considered related to eligibility at the time of filing”?
No.

Does this mean that the final decision is always up to the adjudicators?
Yes.

Application

What if there is no change in circumstances?
Will the adverse action likely preclude a finding that the labor certification application meets the "properly filed" standard?
Yes.

Why?
Because the reasons for adverse action are likely to relate to eligibility at the time of filing.

Does "likely preclude a finding” mean "always preclude a finding”?
No.

Does "the reasons for adverse action are likely to relate to eligibility at the time of filing” mean "the reasons for adverse action are always considered related to eligibility at the time of filing”?
No.

Does this mean that the final decision is always up to the adjudicators?
Yes.

Examples of merits of the petition or application itself at the time of filing

Do merits of the petition or application itself at the time of filing include fraudulent petitions or applications?
Yes.

Does this mean that petitions and applications that are adverted due to fraudare cannot serve as a basis for grandfathering?
Yes.

Why?
Because petitions containing fraud do not meet the "approvable at the time of filing" standard.

Is it always true?
Yes.

Do merits of the petition or application itself at the time of filing include meritless petitions or applications?
Yes.

Do merits of the petition or application itself at the time of filing include cases in which the claimed family relationship simply cannot serve as the basis for issuance of a family-based immigrant visa?
Yes.

Do merits of the petition or application itself at the time of filing include cases in which the claimed employment simply cannot serve as the basis for issuance of an employment-based immigrant visa?
Yes.

Grandfathered children and spouses

How does the Section 245(i) define the term "beneficiary"?
The Section 245(i) defines the term "beneficiary" to include a spouse or child "eligible to receive a visa under section 203(d) of the Act."

Does this apply to spouses or children "accompanying" the principal alien?
Yes.

Does this apply to spouses or children "following to join" the principal alien?
Yes.

Does this mean that an alien who is accompanying or following to join a grandfathered alien is thus also the "beneficiary" of the grandfathered petition or labor certification application and is also grandfathered?
Yes.

Does this mean that the spouse or child is grandfathered irrespective of whether the spouse or child adjusts with the principal?
Yes.

Does an alien's ability to characterize himself or herself as "accompanying or following to join" the principal alien depend on the existence of a qualifying relationship at the time of the principal's adjustment?
Yes.

Must adjudicators determine whether the relationship existed prior to the time the alien adjusted status?
Yes.

Does the burden of proof to establish the qualifying relationship rest with the applicant?
Yes.

The "after-acquired" children and spouses

What if an alien with a pending, grandfathered petition or labor certification application marry or have children after the qualifying petition or application was filed but before adjustment of status?
Are these "after-acquired" children and spouses allowed to adjust under 245(i)?
Yes.

What if an alien with a pending, grandfathered petition or labor certification application marry or have children not only after the qualifying petition or application was filed but also after the adjustment of status?
Are these "after-acquired" children and spouses allowed to adjust under 245(i)?
No.

...Unless he or she has an independent basis for grandfathering?
That is correct.

"Aged-out" children

Does a "child" who reaches the age of 21 meet the statutory definition of child?
No.

What if a principal alien who has filed a visa petition or labor certification application has a "child" who reaches the age of 21 (and thus no longer meet the statutory definition of child) before the petition or application is approved or the principal alien adjusts status?

Will such an "aged-out" beneficiary remain a beneficiary for the purpose of determining whether he or she may use Section 245(i) to adjust status?
Yes.

The "after-divorced" spouses

What if a principal alien who has filed a visa petition or labor certification application has a "spouse" who divorced before the petition or application is approved or the principal alien adjusts status?

Will such an "after-divorced" beneficiary remain a beneficiary for the purpose of determining whether he or she may use Section 245(i) to adjust status?
Yes.

Does this mean that the pre-April 30 spouse or child also grandfathered even after losing the status of spouse or child, such as by divorce or by becoming 21 years of age?
Yes.

Approved filings

Does the pre-April 30, 2001 immigrant visa petition that has already been approved always meet the "approvable at the time of filing" standard?
No.

When?
1. When and the adjudicator discovers that the petition was fraudulent and thus deficient and/or
2. When the petition has been used as the basis for admission as an immigrant or for adjustment of status.

Only in these two cases?
Yes.

Does the pre-April 30, 2001 labor certification application that has already been approved always meet the "properly filed" standard?
No.

Does this mean that the non-fraudulent, unused (and only non-fraudulent, unused) pre-April 30, 2001 filing that has already been approved provides a basis for grandfathering?
Yes.

Different filing

May "the different filing" be of either the same or different visa category?
Yes.
May the pre-April 30 petition be pending for adjudication at an INS Center while a subsequent petition for the grandfathered alien be pending at a district office?
Yes.

Reasons for changing the filing

Does this mean that the pre-April 30th filing will allow the alien to use 245(i) to adjust status on the basis of a different filing even if the applicant becomes the beneficiary of that filing for any number of reasons?
Yes.

DV Lottery

Does this mean that the pre-April 30th filing will allow the alien to use 245(i) to adjust status on the basis of his/her current diversity immigrant eligibility?
Yes.

Change of employer

Does this mean that the pre-April 30th filing will allow the alien to use 245(i) to adjust status on the basis of employment-based petition even if the applicant changed employer?
Yes.

Change of petitioner

Employment-based petition

Does this mean that the pre-April 30th filing will allow the alien to use 245(i) to adjust status on the basis of employment-based petition even if the applicant changed petitioner?
Yes.

Family-based petition

Does this mean that the pre-April 30th filing will allow the alien to use 245(i) to adjust status on the basis of family-based petition even if the applicant changed petitioner?
Yes.
Even if the petitioner is changed by remarriage?
Yes.

VISA NUMBER

What if a grandfathered alien is adjusting status on the basis of an immigrant visa petition or labor certification application other than the one serving as the basis for grandfathering?
Should the adjudicator take care to request a visa number from the Department of State in the original grandfathered visa category?
No.

Should the adjudicator take care to request a visa number from the Department of State in the category under which the alien is actually adjusting his or her status?
Yes.

Does this mean that the status be adjusted using a visa number obtained through a post-April 30th filing?
Yes.

Is this especially important when the visa providing the basis for adjustment was obtained through the Diversity Lottery program?
Yes.

HISTORY OF THE "ALIEN-BASED READING"

Was the "alien-based” reading of Section 245(i) included in the law?
No.

Has INS adopted the "alien-based” reading of Section 245(i)?
Yes.

How?
It was adopted by INS Memorandum dated April 4, 1999. "Accepting Applications for Adjustment of Status Under Section 245(i)”.

Does this mean that INS officers should accept applications for adjustment of status under Section 245(i) of the Act if the alien may show that he or she is the beneficiary of a pre-April 30, 2001 filing?
Yes.

UNLAWFUL PRESENCE

Are aliens with pending affirmative applications for adjustment of status before the INS under both sections 245(a) and 245(i) of the Act in a period of stay authorized by the Attorney General?
Yes.

Is the period of stay authorized by the Attorney General for the sole purpose of calculating periods of unlawful presence as defined in section 212(a)(9)(B) of the Act?
Yes.

Has INS determined it as a matter of policy?
Yes.

Shall this period of authorized stay include the period during which a denied application is renewed during the course of a removal proceeding?
Yes.

Does the mere filing of a grandfathering petition or application for a labor certification place the alien in a period of stay authorized by the Attorney General?
No.

REMOVAL PROCEEDINGS

What if INS encounters an alien who is the beneficiary of a grandfathering immigrant visa petition or labor certification application?

Is the fact that the alien is such a beneficiary a bar to the commencement of removal proceedings?
No.

May the fact that the alien is such a beneficiary be an important factor to be considered in determining whether INS resources are best utilized by commencing removal proceedings against that particular alien?
Yes.

Must INS look at the grandfathering immigrant visa petition or application for labor certification to determine whether the filing is an important factor to be considered?
Yes.

What is the issue?
The issue is whether or not the filing may ultimately allow the beneficiary to seek adjustment of status.

Does this mean that the immigrant visa petition must ultimately meet the "approvable at the time of filing" standard?
Yes.

Does this mean that the application for labor certification must ultimately meet the "properly filed" standard?
Yes.

ADJUDICATORS

Who will adjudicate the case?
Adjudicators.

Who they are?
INS officers.

APPLICANT'S BURDEN

Is it the applicant's burden to establish that he or she is eligible for the grandfathering benefit sought?
Yes.

Does this mean that the alien must ultimately provide proof that he or she is grandfathered?
Yes.

Must an alien who claims to be grandfathered because of pre-April 30, 2001 filing with the INS show evidence of that filing when submitting the subsequent application for adjustment of status?
Yes.

May the evidence of filing include a documentary proof?
Yes..

Will only documentary proof be accepted as the evidence?
It is not clear at this time. Probably, yes.

What will be accepted as a documentary proof that an immigrant visa petition was submitted to the INS on or before April 30, 2001?
An INS-issued receipt that notes that the petition was received on or before April 30, 2001?

Does the INS-issued Notice of Receipt always note the date the petition was received?
Yes.

What will be accepted as a documentary proof that a labor certification application was submitted to the DOL on or before April 30, 2001?
A statement from the DOL that its records indicate that the application was submitted to the appropriate State Agency on or before April 30, 2001.

Will USPS, FedEx, UPS, or any other private courier receipt (that notes that the petition or application was not only mailed but also received on or before April 30, 2001) be accepted as a documentary proof that an immigrant visa petition was submitted to the INS on or before April 30, 2001?
It is not clear at this time. Probably, yes.

What if the receipt notes only that the petition or application was mailed (but not necessarily received) on or before April 30, 2001?

Will such a receipt be accepted as a documentary proof that an immigrant visa petition was submitted to the INS on or before April 30, 2001?
It is not clear at this time. Probably, no.

Is a receipt issued by USPS is more likely to be accepted that a receipt issued by FedEx, USP or any other private courier?
It is not clear at this time. Probably, yes.

Why?
Some INS employees probably believe that only receipts issued by a government agency are may be accepted as a reliable evidence.

ADJUDICATORS’ EFFORTS

Should adjudicators make efforts to verify an alien's claim that he or she is eligible to adjust status under Section 245(i)?
Yes.

What do "efforts” mean?
They mean "reasonable efforts”.

Do "reasonable efforts” mean that adjudicators should carefully review the petition or application to make their determination?
Yes.

Does this mean that the adjudicators will took to the immigrant visa petition and determine whether the petition meets the "approvable at the time of filing" standard?
Yes.

Does this mean that the adjudicators will took to the labor certification application and determine whether the petition meets the "properly filed" standard?
Yes.

Will this determination be made by relying on the information contained not only in the petition or application but also in the supporting documentation?
Yes.

Which government document provides the standard for review the filings?
The April 14, 1999 INS memorandum.

How will adjudicators proceed in case of family-based immigrant visa petition to determine whether it provides a basis for grandfathering?
In that case, adjudicators will proceed to review the pre-April 30, 2001 INS Form 1-130 and supporting documentation.

Which government document discusses the evidence required for family-based petitions?
The April 14, 1999 INS memorandum.

How will adjudicators proceed in case of employment-based immigrant visa petition to determine whether it provides a basis for grandfathering?
In that case, adjudicators will proceed to review the pre-April 30, 2001 INS Form 1-140 and supporting documentation.

How will INS officers proceed in case of and labor certification applications to determine whether it provides a basis for grandfathering?
In that case, adjudicators will proceed to review the pre-April 30, 2001 DOLETA Form ETA 750 Parts A&B and supporting documentation.

Which government document discuss the processing of employment-based petitions and labor certification applications?
The June 10, 1999 INS memorandum.

Check of INS records

Do "reasonable efforts” include check of INS records and available files?
Yes.

What if an adjudicator has a 245(i) adjustment filing that was based on a vehicle other than the qualifying petition that is pending with the INS center, how can the adjudicator discover if the qualifying petition has been adjudicated?
The adjudicator needs to check the CLAIMS system to see if the qualifying petition has been adjudicated.

Is there a strict definition of the term "reasonable efforts”?
No.

Does this mean that the decision is up to the adjudicator?
Yes.

Difficult cases

What if in some cases, it may be difficult for the alien to present or for the INS to secure relevant records to determine whether an alien is grandfathered or to reconstruct whether the petition meets the "approvable at the time of filing" standard or whether the application meets the "properly filed" standard?

Is there the national office that adjudicators with questions may contact for further guidance?
Yes.

What is the Point of Contact?
Pearl Chang, Chief, Residence and Status Branch
The Headquarters Office of Adjudications.
202-514-4754

May adjudicators contact the above point with any questions concerning INS memorandums or policy issues related to Section 245(i)?
Yes.

Are there also respective INS center office contacts that district office adjudicators may forward questions via e-mail for further guidance?
Yes.

What are the names of the persons to contact?
Vermont Center: Beth Libbey
Texas Center: Joyce A. Brown
Nebraska Center: Sandy Palarski
California Center: Hector Corella

Can the adjudicator request an expedited determination whether or not an immigrant visa petition meets the "approvable at the time of filing" standard or a labor certification application meets the "properly filed" standard?
Yes.

How?
The adjudicator needs to contact his or her INS center point of contact (listed above) to request an expedited determination of approvability at the time of filing?

Do "adjudicators" reasonable efforts” and "applicant's burden” requirements mean that if a check of INS records and available files does not substantiate an alien's claim to be grandfathered and the alien cannot establish this fact to the adjudicator's satisfaction, then the applicant cannot be treated as a grandfathered alien?
Yes.

BASIS FOR ADJUSTMENT OF STATUS

What may be the basis for the adjustment of status?
1. An immigrant visa petition, or
2. A diversity visa application.

Does this mean that labor certification application cannot be the "basis for the adjustment"?
Yes.

Why?
If a labor certification application is used as a step to the adjustment of status, it always follows by an employment-based immigrant petition.

Does this mean that the basis for the adjustment of status and the basis for grandfathering are different: the basis for the adjustment of status is either an immigrant visa petition or a diversity visa application; in contrast, the basis for grandfathering is an immigrant visa petition or a labor certification applications?
Yes.

"APPROVABLE AT THE TIME OF FILING" v. "PROPERLY FILED"

Will all pre-April 30, 2001 immigrant visa petitions and labor certification applications result in grandfathering?
No.

What requirements must an immigrant visa petition meet to grandfather the alien?
The petition must have been "approvable at the time of filing".

What requirements must a labor certification application meet to grandfather the alien?
The application must have been "properly filed".

Does this mean that mere proof that an immigrant visa petition or a labor certification application was mailed on or before April 30, 2001 is not sufficient for the grandfathering?
Yes.

Does this mean that "properly filed" is the term used in reference to labor certifications while "approvable at time of filing" is used with reference to immigration petitions?
Yes.

Does this mean that DOL simple do not have the ability to state definitively if a certification is approvable or deniable during certification processing?
Yes.

Has DOL advised this?
Yes.

"APPROVABLE AT THE TIME OF FILING"

What does "approvable at the time of filing" mean for grandfathering purposes?
It means that the petition must meet all applicable substantive requirements for that filing.

What does "all applicable substantive requirements for filing the petition" mean?
It means "all applicable substantive requirements for obtaining immigrant classification in the category for which the petition was filed".

What are "all applicable substantive requirements for filing the petition"?
They are different for family-based and employment-based immigrant visa petitions.

Family-based immigrant visa petition

What requirements family-based visa petition must meet in order to be approvable at the time of filing for the purposes of grandfathering?
1. Existence of the qualifying relationship at the time of filing. 2. Citizenship or permanent residence of the petitioner at the time of filing.

What does the qualifying relationship mean for the purposes of grandfathering?
It means the relationship that may serve as the basis for immigration.

What type of relationship may serve as the basis for immigration?
Spouse (husband, wife), parent (father, mother), sibling (brother, sister), child (son, daughter).

Does this mean that the relationship between cousins (for example) cannot serve as the basis for immigration?
Yes.

Does this mean that a relative petition for a cousin is not approvable at the time of filing for the purposes of grandfathering?
Yes.

"PROPERLY FILED"

What does "properly filed" mean for grandfathering purposes?
It means that the application meets all relevant regulatory requirements established by the Secretary of Labor for filing the application.

"Properly completed"

What all the relevant regulatory requirements established by the Secretary of Labor for filing the application are?
It means that the DOL Form ETA 750 Parts A&B were properly completed by the sponsoring employer and the alien.

Does the Form ETA 750 meet the "properly completed" standard for grandfathering purposes even if the form is not accompanied by all supporting documents?
Probably, yes. It is not clear at this time.



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