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

Continuing form our last article on 245(i), the new regulations have shed some light on a major difference between the new law and the prior law. One of the key differences between the new 245(i) law and the prior 245(i) law that sun-set on January 14, 1998 is a physical presence requirement. The new 245(i) law requires applicants to be present in the United States on or before December 21, 2000. In its interim regulations, INS listed the types of documents that it will accept as proof that applicants were in the U.S. Any one who is applying for 245(i) should carefully review the list of acceptable documents. Now is the time to set aside, in a safe area, the documents that will prove your entry into the U.S.

While many applicants won’t actually be submitting their 245(i) applications for several years, that will not be the time to try and document entry into the U.S. You don not want to be scurrying around at the last moment trying to locate documents that are several years old and probably long since lost. INS has provided the following as a guideline for documenting:

Q1. What kind of proof can I submit with my Section 245(i) adjustment-of-status application to demonstrate that I was in the United States on December 21, 2000?

A1. Government-issued documents are preferable as proof of physical presence, and INS and the Executive Office for Immigration Review (EOIR) documents have precedence over the records of other agencies (see Q15 and Q16). If there are no government-issued documents that demonstrate your physical presence in the United States on December 21, 2000, INS will accept and evaluate non-government issued documents as well. You may submit photocopies of government-issued documents as well as non-government-issued documents that establish your physical presence.

You may have a single document that may suffice to establish your physical presence on December 21, 2000. But if you do not possess documentation that contains the exact date of December 21, 2000, you may need to submit several documents to prove that you were physically present in the United States prior to, as well as after December 21, 2000.

INS will evaluate all evidence on a case-by-case basis and will not accept a personal affidavit attesting to your physical presence on December 21, 2000, without requiring an interview or additional evidence to validate the affidavit.

Q2. Specifically, what kind of INS documentation can I submit to prove that I was physically present in the United States on December 21, 2000?

A2. Examples of acceptable INS documentation include, but are not limited to:

· Photocopy of the Form I-94, Arrival-Departure Record, issued upon your arrival in the United States;

· Photocopy of Form I-862, Notice to Appear;

· Photocopy of the Form I-122, Notice to Applicant for Admission Detained for Hearing before Immigration Judge, issued by INS on or prior to December 21, 2000, placing you in exclusion proceedings;

· Photocopy of the Form I-221, Order to Show Cause, issued by INS on or prior to December 21, 2000, placing you in deportation proceedings;

· Photocopy of any application or petition for an immigration benefit filed by you or on your behalf on or prior to December 21, 2000, which establishes your presence in the United States, or your INS fee receipt for the application or petition.

If you don’t have the document(s) but believe that a copy is already contained in your INS file, you may submit a statement as to the name and location of the issuing federal, state, or local government agency, the type of document and the date on which it was issued. When processing your case, INS will look in your INS file to find the document(s) you specify. You do not need to file a Freedom of Information Act (FOIA) request to obtain the actual document(s) from your INS file.

Q3. Specifically, what kind of other government documentation can I submit to prove that I was physically present in the United States on December 21, 2000?

A3. Examples of such other government documentation include, but are not limited to:

· State driver’s license;

· State identification card;

· County or municipal hospital record;

· Public college or public school transcript;

· Income tax records;

· Certified copy of a federal, state or local governmental record which was created on or prior to December 21, 2000, and filed by you or on your behalf to seek a benefit from that federal, state or local governmental agency;

· Certified copy of a federal, state or local governmental record which was created on or prior to December 21, 2000, that establishes that you submitted an income tax return, property tax payment, or similar submission or payment to that federal, state or local governmental agency;

· Your transcript from a private or religious school-that is registered with, or approved or licensed by, appropriate state or local authorities, accredited by the state or regional accrediting body, or by the appropriate private school association-or maintains enrollment records in accordance with state or local requirements or standards.

You will need to obtain the document(s) from other government (non-INS) agencies and submit photocopies of those records.

Q4. Specifically, what kind of non-government documentation can I submit to prove that I was physically in the United States on December 21, 2000?

A4. Examples of such non-government documentation include, but are not limited to:

· School records;

· Rental receipts;

· Utility bill receipts;

· Any other dated receipts;

· Personal checks written by the applicant bearing a bank cancellation stamp; · Employment records, including pay stubs;

· Credit card statements showing the dates of purchase, payment, or other transaction;

· Certified copies of records maintained by organizations chartered by the Federal or State government, such as public utilities, accredited private and religious schools, and banks;

· If you established that you were part of a family unit living in the United States, documents proving the presence of another member of your family unit; and · If you have ongoing correspondence or other interaction with INS, a list of the types and dates of such correspondence or other contact that you know are to be contained in INS records.

Such non-government documentation must indicate your name, have been dated at the time it was issued, and bear the seal or signature of the issuing authority (if the documentation is normally signed or sealed), be issued on letterhead stationery, or be otherwise authenticated.

Q5. Why do I have to prove that I was physically present in the United States on December 21, 2000?

A5. The law states that if you are the beneficiary of a visa petition or labor certification application that was filed after January 14, 1998, and on or before April 30, 2001, in order to be eligible for adjustment of status under Section 245(i) you also had to be physically present in the United States on the date the LIFE Act was enacted- December 21, 2000.

Q6. Do dependent family members also need to prove that they were physically present in the United States on December 21, 2000?

A6. No. The dependent spouse or children of the principal beneficiary do not need to prove that they were physically present in the United States on December 21, 2000. Only the principal beneficiary of the immigrant visa petition filed after January 14, 1998, and on or before April 30, 2001, is required to meet the physical presence requirement.

Because the above lists are not exhaustive, it is best to consult with an immigration attorney on the types of documents that you can provide.