FAQ

• All Aspects of Immigration Law 

  Section 245(i) Extension

All Aspects of Immigration Law

1. I came here in 1997 as a reunification of family beneficiary, with my father. When I entered, the INS stamped my passport with: "Political asylum granted." After one year I filed for adjustment of status. Ten months later I had the interview with INS in Newark. Now it's been over sixteen months and I have not heard anything. When should I expect my green card? For citizenship, do I need to wait five years from the date of my entry?

   It generally takes three to five years for the immigrant visa numbers to become available in asylum cases. The current priority date is available at the US Department of State Website. You may apply for naturalization within five years of receipt of your permanent residency.

   

2. After I completed my master's degree in the US I took optional practical training. Since I couldn't find a job, I joined another university to obtain a second master's degree. But during my second semester, I worked on OPT for a company that sponsored my H-1B. Now I have the H-1B status approved, but I no visa stamped on my passport. I wish to get it stamped as a multiple entry visa so I can visit India. My question is if I go to Mexico or Canada to get it stamped, and it is refused for some reason, can I still come back to the US?

   Generally, US Consulates in Mexico and Canada accept third-country national processing. This includes citizens of India. However, unless you have an un-expired I-94 card, if the consulate does not issue an H-1B visa for you, you risk being denied re-entry. I suggest that you review your complete immigration history with an immigration attorney who provides consular processing services and obtain further guidance on whether or not you have problems obtaining an H-1B visa.

   

3. My H-1B six-year limit expired in July 2000. I applied for an extension of status for two months (Sept 2000). I had previously used two months vacation time outside US. I have not heard anything from INS about the extension? Is it legal for me to stay in US until I hear from INS? My priority date is December 1997. My labor certification cleared on September 1999. My I-140 is still pending. In case S. 2045 becomes law can I apply for H-1B extension and start working immediately?

   The H-1B extension rules allow aliens to stay in the US for period up to 240 days grace period while the INS completes the processing of an H-1B visa. The same employer can employ the alien while the INS adjudicates the H-1B extension request. However, if there are any changes in the employment or the employer, then the alien cannot be employed in the new capacity until they receive approval from the INS. [New H-1B regulations effective 10/17/2000. The alien may change a employer as soon as he or she receives a filing receipt from the INS.]

   

4. When a big company purchases a small company, does an H-1B visa holder who works for the company that was purchased, need to change his I-94?

   Generally, the acquiring entity may be required to file for H-1B holders who are employed by the acquired entity.[New H-1B regulations effective as of 10/17/2000 provide that the successor entity does not need to file an amended H-1B petition.]

   

5. Do I need to send the original copy of my diploma and CGFNS certificate to INS, when filing an I-140 form?

   No. Generally photocopies of any required documents are accepted by INS. However, INS may request the originals at a later time.

   

6. My F-1 status expired in January 2000. My I-94 is marked D/S. My H-1B petition was filed in March 2000 by my lawyer. He told me the two-month delay was caused by the need to obtain approval of the LCA and prevailing wage. Now the INS is asking for an explanation for that two-month delay and my lawyer is still very slow. Please advise how you would view my situation. What should be my way of presenting my case to INS. It has been over six months.

   Even though the INS may approve your H-1B petition, it may deny the change of status request since the INS regulations require that you have a valid nonimmigrant visa at the time you file for change of status. Therefore, in order to be employed, you may need to obtain consular processing.

   

7. How long does it usually take for an RN to get an Employment Authorization Document, (EAD), after filing the I-140 form at Texas Service Center?

   Assuming you are eligible, in general, an EAD must be adjudicated within ninety days of receipt of the I-765 by the Texas Service Center.

   

8. What are your views and experience with consular processing in Delhi?

   None. We practice primarily in Mexico and Canada.

   

9. My father is here on a B-2 visa. His period of authorized stay was six months. That period was May 2000 through November. He has a five-year multiple entry visa. I used the necessary forms to apply for another six-month extension. I received a letter from the INS stating that this type of application takes 365 to 375 days to process. Since this did not make sense, I called the INS Customer Service number, explained the situation to them. They tell me that my father can stay in the US till a decision is made. I am confused.

   Generally, under new rules, a person filing a non-frivolous extension of a petition may remain in the US until the INS makes a decision on the B-2 extension request. However, if the INS determines the extension request is frivolous, then the INS will deny the extension request and the applicant may be subject to the three and ten year bars to re-entry.

   

10. What time frame do you think is involved in obtaining the President's signature and INS regulations on S.2045?

    Since the new fee will be effective within sixty days from the enactment of S.2045, it seems that we should probably have new regulations before the end of the year.[The H-1B (training) fee has been increased from $500 to $1000 for any new or amended petitions received on or after 12/17/2000.]

    

11. For an EB-1 petition to be approved is a job offer required? I would have a job at the time of my consular interview for a immigrant visa based on an EB-1 approval, but that job would be in an under-served area and not be commensurate with the research based claims of my EB-1. Or if I am a physician and will work as a physician is that good enough?

    EB-1 petitions do not require a job offer. However, the law requires that the applicant provide information about his or her job prospects at the time of filing. During your consular interview, the officer will review all of the information stated on your I-140 petition. Generally, you must be employed in the area of expertise that you have claimed at the time your I-140 was filed. Generally, you must be employed in the area of expertise that you have claimed at the time your I-140 was filed0.

    

12. Can EB-1 based consular processing and adjustment of status on the same case move in parallel? Can these move in parallel with a different adjustment of status, based on a different labor certification? Also, I am considering trying a self-petitioned EB1-1 along with a employment-sponsored Labor Certification, I-140 and National Interest Waiver. Which of the two tracks is the safest course for an immigrant visa?

    At this time, it is the position of some INS Service Centers that in order to obtain I-824 approval, you must withdraw your adjustment of status application filed with the INS Service Center. However, different service centers vary in this practice.[INS has confirmed this position recently in the memorandum received from the INS headquarters.]

    

Section 245(i) Extension

1. 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.

   

2. 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.

   

3. 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).

   

4. 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.

   

5. 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.

   

6. 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.

   

7. 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.

   

8. 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).

   

9. 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.

   

10. 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!