INS Should Not Use 245(i) Filings as Basis for Removal Proceedings
Posted May 18, 2001

Lately in the MurthyBulletin, we have published many articles on 245(i). The 245(i) provides an opportunity for out-of-status persons to apply for the Green Card through an employer or certain relatives as legally permissible under U.S. immigration law. For a description of what 245(i) does and does not do as well as the latest INS instructions and regulations, please refer to our April 6, 2001 MurthyBulletin article entitled Section 245(i) Regulations Published March 26, 2001.

One danger for people who wanted to make use of this provision to obtain legal status has been the fact that filing a labor certification (LC) application with the U.S. Department of Labor (DOL) or a petition with INS makes the government aware of the person's status and location. There was therefore a possibility that filing the paperwork for getting grandfathered under 245(i) could lead to the INS' initiating removal (formerly called deportation) proceedings against the person for being in the U.S. illegally. We did see this happen several years ago, in late 1997 when the prior 245(i) deadline of January 14, 1998 was approaching.

Recently we received reports that the INS District Office in Cleveland, Ohio was using information on LC or INS petition filings to initiate removal proceedings against 245(i)-eligible persons. An official at that office claimed that if they received information about an out-of-status person who was the beneficiary of an LC or petition, they had no choice but to act on that information. They were required to investigate and, if the person was here illegally, they had to initiate proceedings.

On April 27, 2001 INS changed its policy. Mr. Michael A. Pearson, Executive Associate Commissioner, Office of Field Operations at INS Headquarters, issued a Memorandum to INS offices instructing them not to use a 245(i) LC, immigrant petition or adjustment of status filing as the sole basis for putting a person into proceedings. Mr. Pearson declared that it was necessary to balance two competing concerns: enforcement of the immigration laws, and avoidance of actions that make employers and foreign nationals too afraid to apply for legal status. While we applaud this change in policy, it was issued three days before the 245(i) deadline, too late for those who may have already been discouraged from applying for benefits under 245(i).

Unless and until the person's immigrant petition or LC application is denied, INS offices are prohibited from using those applications / petitions as a basis for removal proceedings. Keep in mind that a person may come to the attention of INS in other ways, for example as a result of being arrested for a crime, being caught at the workplace for using a fake social security number to work, etc. INS is still allowed to put the person in proceedings if it encounters him/her in any of these other ways. Rather, INS cannot initiate proceedings based solely upon the filing of immigration paperwork with DOL or INS.

The Memo is silent on actions against employers, under the employer sanctions rules, for employing persons who are not authorized to work. Therefore, while this memo puts the foreign nationals at ease, the employer may still be vulnerable, if the person is currently working there. (Of course, if an employer files an LC for someone who is not yet working for the company, then that is not a violation of the employer sanctions provisions by the employer.)

The Memo concludes by stating that it does not create any enforceable right, so a person could not file a lawsuit based on the Memo. However, the Memo did pave the way for settlement of the lawsuit that had already been filed in Cleveland. In light of the INS Memorandum, Cleveland INS settled the lawsuit on May 1, 2001, promising to terminate proceedings against the four plaintiffs and to discontinue the practice of initiating proceedings against persons in this situation. In exchange, the attorney agreed to dismiss the suit.