Q: I recently filed a combined Immigrant Petition for Alien Worker (I-140) and Adjustment of Status application (I-485) based on an approved labor certification. The immigration service rejected the case and has indicated that I am not covered under INA §245(i). What are the eligibility requirements under §245(i)?
A: In 1994, INA §245(i) was enacted, which allowed aliens that were ineligible for adjustment of status to pay a penalty fee and apply for permanent residence status in the U.S. The §245(i) program ended on January 14, 1998. The Legal Immigration and Family Equity (LIFE) Act, signed on December 21, 2000, briefly restored §245(i) by extending the cut-off date to April 30, 2001.
To be eligible for Section 245(i) adjustment of status an alien must be the beneficiary of a Petition for Alien Relative (Form I-130), Immigrant Petition for Alien Worker (Form I-140), Petition for an Amerasian Widow(er), or Special Immigrant (Form I-360), Petition for an Alien Entrepreneur (Form I-526), or Application for Labor Certification filed on or before April 30, 2001. For cases filed after January 14, 1998, the beneficiary must have been physically present in the United States on December 21, 2000. Also, the labor certification or immigrant petition must be approvable when filed, which means the petition or application must be timely filed, meet all substantive requirements, and be free of deficiencies and fraud.
Q: What happens to my §245(i) eligibility if the petitioning employer withdraws the labor certification.
Petitions and applications that have been denied, withdrawn, or revoked may still grandfather the alien beneficiary if the case was approvable when filed. It is important to realize that circumstances regarding the revocation, withdrawal or denial of the labor certification must not involve the merits of the case at the time of filing. If an employer for a labor certification or employment-based petition goes out of business, chooses to withdraw, or becomes ineligible, the alien beneficiary does not lose grandfathered status as long as the qualifying petition or application was approvable at the time of filing.
Q: Why is the Service refusing to accept my case for processing?
A: Unfortunately, it appears the Service has adopted a distorted position regarding §245(i) eligibility involving labor certifications. In particular, the California Service Center is refusing to accept adjustment of status applications for persons relying on timely filed labor certifications for §245(i) if the original labor certification was withdrawn. The Service is attempting to differentiate immigrant petitions and labor certification applications involving denials, withdrawals, or revocations.
Q: I have spent the last two years waiting for an approval on the labor certification and now the Service claims I am not qualified to adjust status. Is there any hope for my case?
A: Reeves and Associates is known for its aggressive representation and use of the Federal District Courts to address unfair treatment, delay, and improper administration of immigration laws. Our ability to litigate in Federal Court sets Reeves & Associates apart from other immigration firms and is fundamental to building our influence in all aspects of immigration practice. The rejection notice issued by the Service in your case involves the unreasonable and improper use immigration laws. If you or a family member has received an adjustment of status rejection notice from the Service based on §245(i) ineligibility then contact our office for a consultation with an experienced immigration attorney.