Section 245(i) Regulations Published March 26, 2001
Posted Apr 05, 2001

As described in many previous issues of the MurthyBulletin, especially during December 2000 and January and February 2001, certain persons in the U.S. unlawfully may still be able to use the family-based or employment-based Green Card process, if they begin their cases on or before April 30, 2001.

This deadline is set in a law known as the LIFE Act, which provides a temporary extension of section 245(i) of the Immigration and Nationality Act. As we have explained many times, 245(i) is not an amnesty; a person must still qualify under the usual family-based or employment-based procedures. It also does not in any way speed up a person's case. Further, those whose status has expired, or who entered the U.S. undocumented, are still vulnerable to deportation even if they have started their Green Card processes. Only at the last stage, known as adjustment of status (I-485) do they have any legal protection to remain in the U.S. At that stage, they can retroactively correct the status problem by submitting a supplemental form and a penalty fee. Additionally, for those whose Green Card processes were started between January 15, 1998 and April 30, 2001, documentation of physical presence as of December 21, 2000 must be included with the adjustment of status application.

Recent INS Efforts to Inform the Public on 245(i)

INS has issued extensive, helpful information on 245(i), including a press release and a set of questions and answers. These documents were issued on March 23, 2001 in both English and Spanish. These and other materials should be available on the INS website. On March 26, 2001, INS issued a set of detailed regulations on 245(i). The regulation was issued as an interim rule with request for comments. The rule is effective immediately, but comments are due by May 25, 2001.

Eligibility Standards

The rule adds the April 30, 2001 deadline and explains the eligibility standards to qualify for 245(i). Basically, in order to become eligible for 245(i), an employment-based immigrant visa petition (I-140, I-360, or I-526) or family-based immigrant visa petition (I-130) must be properly filed with INS, or a Labor Certification application (LC) must be properly filed in accordance with the U.S. Department of Labor (DOL) procedures, on or before April 30, 2001, and the LC or petition must have been approvable when filed. Filing of the qualifying petition or LC protects not only the direct beneficiary but also his/her dependent spouse and children. Even if the individual eventually obtains the Green Card on some other basis, through a different employer or relative from the person who filed the original petition, s/he is still eligible to utilize 245(i) at the adjustment of status stage.

Properly Filed

INS is utilizing a generous standard to define "properly filed." A petition will be considered properly filed if it reaches the INS office and is stamped as received by the INS on or before April 30, 2001 OR even if it is postmarked on or before that date. Also, because of the limited time available, INS will accept a petition that does not contain complete information. As long as it includes the name of the petitioner and beneficiary, is signed by the petitioner, and is accompanied by the proper fee, the petition will be considered as properly filed. This differs from that required by DOL as mentioned below.

Please note that for purposes of an LC, it is up to the DOL to issue instructions as to whether a postmark by April 30, 2001 is enough. Based upon presentations by the government agencies at the American Immigration Lawyers Association Spring Conference on March 23, 2001, it appears that the DOL requires the LC be actually, physically received and stamped in by the state labor office on or before April 30, 2001.

Approvable When Filed

"Approvable when filed" means a) properly filed, as defined above, b) having a factual basis and c) non-frivolous. There appears to be some overlap between items b) and c) above. For example, if a petition is fraudulent or if there is no arguable ground of eligibility, then it would be without factual basis and also frivolous. Note that "approvable when filed" does not mean that the petition must be approved to preserve 245(i) eligibility. It could be denied for a variety of reasons, depending upon the criteria for the particular immigration category requested. The standard for approvable when filed is similar in the LC context.

Petitions that are Denied, Withdrawn, or Revoked

A petition that is denied, withdrawn, or revoked may still preserve 245(i) eligibility, depending upon the reason for the outcome. The basic issue is whether the petition met the "approvable when filed" standard.

For instance, if the petition was withdrawn, denied, or revoked because of situations arising after the petition was filed, the petition will still qualify the person for 245(i). Examples INS gives of a change in circumstances are a child "aging out" (reaching 21 so no longer being eligible for certain categories), an employer going out of business, or a termination of a valid marriage.

If a petition is without merit and is denied because the beneficiary was not eligible at the time of filing, for example did not have the required family relationship at the time, then it cannot serve as a basis for 245(i) eligibility.

LC Substitutions

As many readers of the MurthyBulletin are aware, it is possible to substitute a beneficiary when an employer has an approved labor certification that was filed for someone else, and the new beneficiary meets all the requirements for the job at the time the labor certification is filed. There is a procedure through INS to file a petition based upon that old labor certification. While this method may be an avenue to obtain an earlier priority date, please note that the substituted beneficiary does not obtain the benefit of 245(i) eligibility. The LC qualifies only the original LC beneficiary for 245(i).

Documentation of Physical Presence

The regulation includes a very helpful and detailed list of documents for proving physical presence as of December 21, 2000. Listed are various items from federal and state government as well as private sources, in order of preference. We described some of those items in the MurthyBulletin article from February 9, 2001, entitled, INS on Procedures Under LIFE's 245(i) Physical Presence Rule, based upon information that the INS released prior to the regulations.