WHAT IS THE NEW SECTION 245(I) PROVISION OF THE LEGAL IMMIGRATION AND FAMILY EQUITY ACT OF 2000 (LIFE ACT)?
The new Section 245(i) allows certain eligible people (see answer to question #3) to become
permanent residents without leaving the U.S. Eligible people have until April 30, 2001 to file
an immigrant visa petition (an I-130, I-140, or I-360) with the Immigration and Naturalization
Service (INS) or a labor certification application with the Department of Labor (DOL) in order
to take advantage of this new provision.
IMPORTANT NOTE: The LIFE Act adds a new “physical presence” requirement: People who file a
petition or labor certification after January 14, 1998 but before April 30, 2001 must prove
that they were in the U.S. on December 21, the date this measure became law, in order to be
eligible to use Section 245(i).
Filing an immigrant visa petition is the first step in a two-step process. The second step is
acquiring permanent residency (the “green card”) by filing an adjustment of status application
(Form I-485). Even if a person does not apply to adjust status until after April 30, 2001, as
long as the petition or labor certification is filed before that date, if he/she is qualified,
their eligibility will not expire.
WHY IS THIS NEW SECTION 245(I) NEEDED?
Because Congress phased out the original Section 245(i) on January 14, 1998. (The original
Section 245(i), authorized in 1994, allowed eligible people who were out of status to adjust
their status in the U.S. upon payment of a fee of $1,000.) People who already qualified as of
January 14, 1998 were “grandfathered” to receive the benefits of Section 245(i). However, many
qualified people missed the January 14 deadline and others since have fallen out of status.
The extension of Section 245(i) until April 30, 2001 provides a four-month window of
opportunity for people to protect their ability to adjust their status in this country.
WHO IS ELIGIBLE TO QUALIFY FOR THE NEW SECTION 245(I) PROVISIONS?
A person who is eligible for permanent residence based on a family relationship or job offer,
and who wishes to adjust status to permanent residence without leaving the U.S., could benefit
from the new Section 245(i). Most people who entered the U.S. without inspection, overstayed
an admission, acted in violation of the terms of their status, worked without authorization,
entered as a crewman, or were admitted in transit without a visa, are considered out of status
and would be unable to complete the process to become a permanent resident in the U.S. without
WHAT ARE THE THREE AND TEN YEAR BARS, AND WHY SHOULD THEY BE OF CONCERN?
Without Section 245(i), out of status people needed to return to their home countries and
there complete the process for an immigrant visa at the U.S. consulate. However, if people
have been out of status in the U.S. for more than 180 days, they would be barred from
reentering the U.S. for at least 3 years, and perhaps as long as 10 years. Under Section 245
(i), an eligible individual can remain in the U.S. to obtain permanent residence through
adjustment of status, and thus never trigger these entry bars. (Once permanent residence is
obtained, these entry bars no longer apply.) Thus, it is particularly important that people
subject to the bars not leave the U.S. at all until they become permanent residents.
WHAT DOES THE NEW PHYSICAL PRESENCE REQUIREMENT MEAN AND HOW DO YOU PROVE COMPLIANCE WITH IT?
Under the new law, beneficiaries of an immigrant petition or labor certification that is filed
after the old deadline of January 14, 1998, but before the new deadline of April 30, 2001,
must prove that they were physically present in the United States on the date that LIFE Act is
signed into law, December 21, 2000. People can prove compliance by submitting evidence of
physical presence in the U.S. This evidence could include any receipts for December 21 that
include the beneficiary’s name.
HOW DOES A PERSON TAKE ADVANTAGE OF THE NEW SECTION 245(I)?
To take advantage of the new Section 245(i), a relative must submit a visa petition to the INS
on behalf of the person seeking Section 245(i) benefits. The U.S. citizen or legal permanent
resident who is sponsoring the Section 245(i) eligible person must file (and sign) the
petition. In addition, an employer can submit a labor certification to the DOL on behalf of
the person seeking Section 245(i) relief. Both petitions and applications must be submitted on
or before April 30, 2001. The INS or DOL does not have to approve the petition or application
by that date. It just needs to be filed by April 30, 2001.
Legal permanent residents can petition for their spouses and unmarried sons and daughters (of
any age). U.S. citizens can petition for their spouses, married and unmarried sons and
daughters of any age, parents, and brothers and sisters.
It is important to know that battered immigrant spouses can submit petitions for themselves,
as can applicants for national interest waivers.
DO PEOPLE HAVE TO ADJUST STATUS USING THE SAME CATEGORY IN WHICH THEY PETITIONED?
No. It is important that people eligible to use Section 245(i) file their petitions and
applications before April 30, 2001 using the eligibility they have at the time they file the
petition. This initial filing preserves the ability to adjust! People can switch to another
category when they become eligible for that category if that switch allows them, for example,
to more quickly adjust their status.
WHAT IS THE FEE AND WHEN MUST IT BE PAID?
The Section 245(i) fee is $1,000, and is in addition to any other filing fees the INS and DOL
charge. In most cases, this fee does not have to be paid when relatives or employers submit
the visa petition or labor certification on or before April 30, 2001. Rather, it is usually
due later, when people adjust their status and become permanent residents. Thus, the $1,000
fee usually needs to be paid at the time of filing the Form I-485A, which is submitted along
with the standard application for adjustment of status (Form I-485).
DOES THE NEW SECTION 245(I) GRANT WORK AUTHORIZATION, PROTECTION FROM DEPORTATION, OR TRAVEL
NO! Section 245(i) only allows people who illegally entered the United States or are out of
status for various reasons to adjust their status in the U.S. if they are otherwise eligible.
It offers no other protections or rights.
WHAT CAN PEOPLE DO TO MAKE SURE THEY TAKE ADVANTAGE OF THIS NEW OPPORTUNITY?
It is vitally important that people seeking Section 245(i) benefits seek advice from the
people who can really help them: immigration lawyers and clinics with the expertise and
knowledge to get the job done correctly. People who use notarios endanger themselves and their
families and may end up, due to incorrect advice, being unable to use Section 245(i), out of
luck and still out of status!