SECTION 245 (i)
The Legal Immigration and Family Equity Act of 2000 (LIFE Act) and LIFE Act Amendments, extended Section 245 (i) of the Immigration and Nationality Act from January 14, 1998 to April 30, 2001. Those who were eligible had until April 30, 2001 to file a labor certification application or immigrant petition. To be eligible under Section 245(i), an applicant had to prove that he or she was actually physically present in the U.S. on December 21, 2000.
Section 245(i) permits individuals who are out of status (or illegal) to adjust within the U.S. to permanent residence, by paying a penalty fee of $1,000.
To be eligible for adjustment, a foreigner must be immediately eligible for an immigrant visa through a family member or employer sponsorship, or through an investment. All qualified beneficiaries were “grandfathered” under Section 245(i) as long as they filed a relative petition, employment-based petition or labor certification application by April 30, 2001.
What does it mean to be “grandfathered” under Section 245(i)? According to agency memos issued on April 14, 1999 and June 10, 1999, the USCIS has adopted an “alien-based” reading of Section 245(i). It is the alien beneficiary of a visa petition or labor certification filed on or before April 30, 2001 who is grandfathered and thus able to adjust status under Section 245(i). Thus, as long as the alien is the beneficiary of a labor certification or visa petition filed by April 30, 2001, the alien may later on adjust status under a different labor certification or visa petition.
However, according to an Interim Rule issued on March 26, 2001, the family or employment-based petition filed by April 30, 2001, must be considered “approvable when filed”, in order for the alien to later use another petition under which to adjust status. According to the interim rule, “approvable when filed” means that the petition was properly filed, meritorious in fact and non-frivolous. For example, a visa petition is not approvable when filed if it is fraudulent or if the named beneficiary did not have, at the time of filing, the family or employment relationship that would support the issuance of an immigrant visa. For example, when the basis for grandfathering is a labor certification application, the application must be filed and accepted by a state department of labor to be considered “properly filed”. Additionally, aside from the beneficiary, derivative family members who are accompanying or following to join are considered grandfathered under Section 245(i). A beneficiary may be grandfathered even though a petition is later withdrawn, revoked or denied, as long as it was “approvable when filed”. Thus, if a petition is denied because of a change in circumstances, such as the petitioning employer going bankrupt or the death of the sponsoring relative, the petition is considered “approvable when filed”. On the other hand, if a petition is denied on the merits, the petition may not be considered “approvable when filed”.
If you already have a visa petition or labor certification application pending, and wish to substitute a new petition, or if no petition has ever been filed on your behalf, but you believe you may be eligible for relative or employer sponsorship, you should discuss your case with an immigration attorney.