New immigration laws involving §245(i), two new visas and late amnesty cases

Carl Shusterman: Good evening everyone. I am happy to announce that the President signed the new law yesterday and that anyone present in the United States on December 21st, 2000 who has a labor certification or an employment based or family based petition filed on their behalf before April 30th, 2001 may be eligible for benefits under the revised Section 245(i), even if their eligibility and their application for Adjustment of Status occurs after April 30th.

Before I take the first question I would like to dispel a few myths concerning §245(i):

Section 245(i) is not an amnesty, does not provide anyone with an instant work authorization, and does not protect anyone from deportation. Having said that, it is important that the hundreds of thousands of people who may be eligible for benefits under §245(i) take advantage of this once in a lifetime opportunity to get a green card without leaving the United States.

Carl Shusterman: The other benefits are for late amnesty filers. In addition, Congress passed a premium processing fee which will allow the INS to process certain employment-based applications very expeditiously in exchange for an extra fee.

On the other hand, if these persons remain in the United States unlawfully for over 180 days, or over one year if they attempt to obtain their green cards abroad, they may be barred from returning to the United States from three to ten years. This places many people seeking green cards in a "Catch 22" situation. Section 245(i) solves this situation by allowing such persons to adjust their status when their priority date is current, without leaving the United States. There is a $1000 fine per person. But this is usually far less than the person would have to pay to travel abroad to get a visa.

Question #3: I won DV2001 but I overstayed a tourist visa. Can I adjust status under §245(i)?

Carl Shusterman: Only if you were present in the United States on December 21, 2000 and you have a labor certification or visa petition filed on your behalf on or before April 30, 2001. The INS issued a memorandum on this subject on June 10, 1999 which provides excellent guidance on this topic. See:

Carl Shusterman: Although my crystal ball always gets hazy when I am asked to predict future events, a little history may be instructive.

In October of 1994 when the original §245(i) was added to the law, the fine was $650 per person. When the law was amended in 1996, the fine was raised to $1000 per person, the same as it is now.

Carl Shusterman: The V visa allows beneficiaries under the 2(a) visa category (spouses and children of permanent residents) who have been petitioned over three years ago, to live and work in the United States until their applications for green cards are decided by the INS. A person who is living abroad may apply for a V visa after the end of this three year period while a person who is present in the United States, even if the person is residing in the US illegally, may change status to V. For more information about the various amendments passed by Congress on December 15th, see:

Carl Shusterman: Number one - you must wait for the visa petition to be approved, number two, you should go to:

http://shusterman.com/vb.html

and take a look at the latest priority dates in your category. In your case, look under family categories under the fourth category, and you will see that under the month of January 2001, only those persons whose brothers filed a petition on their behalf on or before September 1st, 1989, can now apply for green cards. In other words, the waiting time for this category is extremely long; over 11 years. Is there a faster way for you to get a green card? You should consider green cards through employment, through other relatives, or through the visa lottery.

The advantage of having your brother file a visa petition on your behalf, is that you are now §245(i) eligible and for the rest of your life, barring you leaving the US or being ordered deported, and will have the privilege of adjusting status to permanent residence in the United States.

Carl Shusterman: Section 245(i) allows persons who might otherwise be eligible for adjustment of status because of the way they entered the United States or because they failed to maintain status after they entered the United States to obtain green cards without leaving the United States if:

1) they were present in the US on December 21, 2000;

2) they filed an application for adjustment of status and they pay a $1000 fine; and,

3) they are otherwise eligible for adjustment of status.

Carl Shusterman: If you marry a United States citizen while you are under deportation proceedings, your spouse may submit a visa petition on your behalf, and you may submit an application for Adjustment of Status simultaneously. Typically, the judge will adjourn the hearing for the INS to conduct an interview to determine the bona fides of your marriage.

Once INS has approved the visa petition, the judge will decide your application for Adjustment of Status and if the judge approves your application you will no longer be under deportation proceedings.

On another note, for those of you who are interested in the late amnesty provision of the new law, please see AILA's draft summary of the amendments at:

http://shusterman.com/life00.html

In general, the new law is a new lease on life for class members under the CSS, LULAC and Zambrano class action law suits.

The law gives the INS 120 days to issue regulations concerning how Class members may apply for permanent residence in the US. After the regulations are published class members will have 12 months in order to submit their applications for permanent residence.

In the meantime, spouses and unmarried children of Class members who meet certain criteria will be eligible for work authorization in the United States and will be guarded against most grounds of deportation.

It is probably also a good idea to note that since this new LIFE law was passed by Congress, our firm has enlisted the services of a former INS officer to conduct short consultations regarding eligibility for §245(i). See:

http://shusterman.com/intake.html

Many persons who have requested interviews are in legal status in the United States and have always been in legal status in the United States. While it never hurts to have a little insurance that you will still be able to adjust status in the US should you ever fail to maintain legal status in the US, for example if your company goes bankrupt, if you lose your job, if you stay longer in the US than permitted, etc., most people who are legal in the United States will never need to apply for a green card under §245(i).

It is important to remember that §245(i) is a fine provision which enables persons who are illegally in the US to become permanent residents without leaving the United States. If you have always been legally present in the US, it is probable that you will never need to pay such a fine or to utilize the benefits of §245(i).

Jennifer Wipf: Everyone, Mr. Shusterman has stayed overtime and needs to leave us now. Please note we got a huge number of questions, many of which were not related to LIFE - the new law, or which were not clear enough to properly address.

The transcript of this chat will be up on this site soon and hopefully you will find your answers there, or in the other links we have provided on details of LIFE.

Carl Shusterman: Happy holidays to everyone and thank you for the excellent questions. For those of you who are in H-1B status and now realize that §245(i) and will probably not apply to you, I will be updating Shusterman.com to include AILA's excellent summary of the new Labor Department H-1B regulations, which were published earlier this week and which will go into effect on January 19th, and will doubtless be the subject of a near future chat. We look forward to chatting again and answering your questions. And for those of you who have either a relative or employer who can file an application or petition for you to make you §245(i) eligible, I urge you to act quickly! The April 2001 deadline will be here faster than you think.

Good night all!

Jennifer Wipf: Thank you, and good night.

Click here for an FAQ style recap

Remember to follow-up with these popular and informative documents:

See: Immigration Amendments Passed 12-15-00 at Shusterman.com

and our article on LIFE - §245(i), Two New Visas, Late Amnesty on this site

as well as Daily Immigration Headlines at About

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