INS Issues Long Awaited Interim 245(i) Regulations! How Do they Affect You? Part 1 of 2

On March 26, 2001, INS issued the long-awaited interim regulations on 245(i) and how it will be implementing the new law. These interim regulations are not expected to change much in final form. With the issuance of these regulations, many common asked questions have been answered. In this first of two parts, 11 of the most commonly asked questions are posed and answered.

Q1. What is the Section 245(i) provision of the Legal Immigration Family Equity Act (LIFE Act)?

A1. Section 245(i) allows certain persons, who have an immigrant visa immediately available but entered without inspection or otherwise violated their status and thus are ineligible to apply for adjustment of status in the United States, to apply if they pay a $1,000 penalty.

Q2. Who is covered under Section 245(i) adjustment of status?

A2. Those covered include individuals who:

· Entered the United States illegally;

· Worked in the United States illegally,

· Failed to maintain continuously lawful status,

· Entered under the Visa Waiver Pilot Program,

· Entered as foreign crewmen, and

· Entered as foreign travelers in transit without a visa.

Q3. Am I eligible for Section 245(i) adjustment of status under the LIFE Act?

A3. To be eligible, you must:

· Be the beneficiary of a Form I-130 immigrant visa petition (“Petition for Alien Relative”), or Form I-140 immigrant visa petition (“Immigrant Petition for Alien Worker”), or Form I-360 [“Petition for an Amerasian Widow(er), or Special Immigrant], or Form I-526 (“Petition for an Alien Entrepreneur”) filed with the INS on or before April 30, 2001, (either received by INS or, if mailed, postmarked on or before April 30, 2001) or

· Be the beneficiary of an application for labor certification filed with the Department of Labor (DOL) according to DOL rules on or before April 30, 2001, and

· Also have been physically present in the United States on December 21, 2000, if the qualifying visa petition or labor certification application was filed after January 14, 1998.

Q4. If I am married to a U.S. citizen who was lawfully admitted into the U.S., do I need to apply for adjustment under 245(i)?

A4. No. The spouse or unmarried minor child of a U.S. citizen or the parent of a U.S. citizen child at least 21 years of age if he/she was inspected and lawfully admitted to the United States, but subsequently overstayed his/her authorized admission or worked without permission, does not need to apply for adjustment of status under Section 245(i).

Q5. Do I need to apply for adjustment under 245(i) if I was inspected and lawfully admitted into the U.S. , and worked without permission for less than 180 days before I apply for adjustment of status?

A5. No. Persons who are eligible for certain employment-based immigrant visas and who were inspected and lawfully admitted to the United States, but have not violated their status or worked without permission for more than 180 days, do not have to apply for adjustment of status under Section 245(i).

Q6. Must I file my adjustment of status application before April 30, 2001 to be eligible for 245(i)/ Must my I-140 or I-130 petition be approved before April 30, 2001?

A6. No. ou are not required to file for adjustment of status (Form I-485) on or before April 30, 2001. However, to preserve your eligibility to apply for adjustment using Section 245(i) you must:

· Be the beneficiary of a Form I-130 immigrant visa petition (“Petition for Alien Relative”) or Form I-140 immigrant visa petition (“Immigrant Petition for Alien Worker”) filed with the INS on or before April 30, 2001, or

· Be the beneficiary of an application for labor certification filed with the DOL on or before April 30, 2001.

Q7. When do I submit my application for using Section 245(i) adjustment of status?

A7. You will be able to submit your application for adjustment of status under Section 245(i) at any later time when your immigrant petition is approved and a visa number is immediately available for you.

Q8. Does everyone who files for adjustment of status using Section 245(i) have to pay the $1,000 penalty fee?

A8. Yes, unless, at the time you file your application for adjustment of status (Form I-485) under Section 245(i) you are:

· Unmarried and less than 17 years of age, or

The spouse or unmarried child (less than 21 years of age) of a legalized alien who qualifies for and has properly filed Form I-817, “Application for Voluntary Departure under the Family Unity Program.”

Q9. Am I still considered “illegal” if I have an immigrant visa petition or labor certification application filed on my behalf on or before April 30, 2001?

A9. Yes. The mere filing of a visa petition or application for a labor certification has no effect on your current immigration status or unlawful presence in the United States. If you are not in lawful status, you will continue to accrue periods of unlawful presence until you properly file your application for adjustment of status (Form I-485) under Section 245(i). When you file an application for adjustment of status, you stop accruing unlawful presence, but the periods of unlawful presence you accrued before your adjustment application are not eliminated.

Q10. Can I travel outside the United States if I have an immigrant visa petition or labor certification application filed on my behalf on or before April 30, 2001?

A10. If you are living illegally in the United States, the mere filing of a visa petition or application for a labor certification has no effect on your current immigration status or unlawful presence in the United States. If you leave the United States, you will have no authorization to re-enter the country.

When you file your application for adjustment of status (Form I-485), there is a way to obtain permission in advance to travel abroad by requesting “Advance Parole” from INS. However, if you have accrued more than 180 days of unlawful presence, you should not travel abroad because you then will be barred from admission to the United States for either three years or 10 years, even if you were granted “Advance Parole.” Generally, the three-year bar to admission applies to those who were unlawfully present in the United States for more than 180 days and leave the country, and the 10-year bar applies to those who were unlawfully present in the United States for one year or more and leave the country.

Q11. Can I work in the United States if I have an immigrant visa petition or labor certification application filed on my behalf on or before April 30, 2001?

A11. No. The filing of a visa petition or application for a labor certification does not authorize you to work in the United States. You can apply for work authorization at the same time you file your application for adjustment of status (Form I-485) under Section 245(i) authorization by including a Form I-765 (“Application for Employment Authorization”) and the $100 application fee.