THE EXTENSION OF SECTION 245(I): FREQUENTLY ASKED QUESTIONS –

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 

 

Section 245(i).

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 

 

PERMISSION?

 

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!