Leading immigration attorney Carl Shusterman recently hosted a chat on our site on:

§245(i) Benefits Through Employment

Jennifer Wipf: Mr. Shusterman will join us for 245(i) through work chat. He will answer as many on topic questions as possible. If need be, private message me.

Tonight's chat is on 245(i) benefits through work; Mr. Shusterman will be answering questions on that topic only.

Jennifer Wipf: I have over 100 questions submitted so far, I can't go recheck them, but I have taken all questions related to tonight's topic. I am calling Mr. Shusterman now and the guest expert chat will begin. I will try to take more questions as we go, but please wait until I ask for them again.

Jennifer Wipf: Ok, everyone Mr. Shusterman is here now.

Carl Shusterman: Good evening. We have a lot of questions. Let's get to it.

Jennifer Wipf: Please remember that these questions are of a general nature and answers should not be construed as legal advice. :)

Question #1: Can you explain the provisions of 245(i) through employment?

Carl Shusterman: To qualify for Section 245(i) through employment, your employer must file papers on your behalf with the government by April 30, 2001. If your job is in short supply and your employer is unable to find a US worker to fill it, he or she should file an application for an alien labor certification with the state agency which processes these applications for the US Department of Labor.

Some jobs do not require a labor certification. In such cases, the employer may submit a visa petition directly to the INS.

Among these applications are registered nurses, physical therapists, religious workers and outstanding professors and researchers.

In some cases, you may be able to submit an employment-based visa petition for yourself. To do so, your work must be in the national interest or you must be a person of extraordinary ability in your field.

Question #2: What are the steps to become "in-status" using 245(i) and an employer if you are currently out of status?

Carl Shusterman: Step #1: Have your employer submit an application for a labor certification on your behalf.

Step #2: When the labor certification is approved, have your employer submit a visa petition to INS on your behalf.

Step #3: When the visa petition is approved, and your priority date is current, submit an application for adjustment of status for yourself, and applications for your spouse and children who are present in the United States.

Please note that only the principal applicant must have been present in the United States on December 21st, 2000. That means that your spouse and children can enter the United States at a later date and still be eligible for benefits under Section 245(i). It is only at Step #3 that you must pay the $1000 fine under Section 245(i) and that you may obtain a work permit from the INS.

Question #3: Are there only certain types of jobs or degrees involved in work sponsorship for a green card with 245(i) or can uneducated workers also have jobs and sponsors in order to stay here?

Carl Shusterman: As long as your job offer is in a field in which you have some experience or education, and the employer is unable to locate a US worker to fill the vacancy, any job will do. During the last week, our office filed labor certifications for nannies, care givers, teachers, and programmers.

Question #4: Can I sponsor a friend who I brought here illegally in 1998 for work visa and green card through new law. Please send your contact info so I can call you tomorrow.

Carl Shusterman: If you are employing this person or have a job offer for them, they may qualify for benefits under Section 245(i), if they have experience in the occupation and you are able to demonstrate to the Labor Department that you cannot find a US worker to fill the job. To schedule a consultation with me, see http://shusterman.com/intake.html.

Question #5: I have a national interest waiver and while working on h-1b I have worked for another employer thus violating the term of H-1B. Can I qualify under the benefits of 245 (i)?

Carl Shusterman: Persons with national interest waivers are not restricted to working for a particular employer. You can qualify for adjustment of status without paying the $1000 fine under Section 245(i).

Question #6: I am CSS class 1 member and living in LA. My brother is a US citizen and owner of a convenient store in NY. Can he do something for me?

Carl Shusterman: Yes, he can qualify you under Section 245(i) by filing a visa petition on your behalf with INS by April 30, 2001.

Question #7: Can I file I-129 before April 30 and labor certification after?

Carl Shusterman: Form 1-129 will qualify you for any of a number of temporary visa categories. To be eligible under Section 245(i), your employer needs to file either a labor certification, or a visa petition for permanent residence, not for a temporary visa.

Question #8: I am working in US as citizen and I lied to my company. Is there anyway I can get advantage of 245(i)?

Carl Shusterman: Yes. If you are afraid that your current employer will terminate you when he finds out that you lied about your immigration status, you need to find a new employer to file a labor certification on your behalf by April 2001.

Question #9: I'm here on Political Asylum application. I won DV-99 and judge granted me the right to adjust status and ordered visa to be reserved because INS appealed. Can my employer now file for employment visa for me (I'm an accountant)?

Carl Shusterman: Yes!

Question #10: Can F-1 students benefit from 245 (i) if they have graduated and are employed by a US employer?

Carl Shusterman: People who are IN status normally do not need to file for benefits under Section 245(i).  However, some students worked illegally while attending school and may be ineligible for typical adjustment of status. In such a situation, it is wise to file under Section 245(i). Also, because the economy is rapidly changing, companies are merging, and others are going bankrupt, many people may wish to start their labor certifications before April 30, 2001 as an insurance policy against whatever may happen to their job in the future.

Question #11: You said that employer has to apply for labor certification so I am eligible for 245(i). Getting H-1B needs labor certification too, is this the same labor certification?

Carl Shusterman: No labor certification is required for H-1B purposes. Instead, the employer must file a labor condition application (form ETA-9035) in order to get an H-1B visa for a worker. In contrast, for an employer to obtain permanent residence for an employee, he needs to file an application for an alien labor certification (forms ETA 750 A and B).

Question #12: Can a visa petition and a labor certification be filed at the same time?

Carl Shusterman: If the visa petition is based on the labor certification, then the labor certification must be approved before the visa petition may be submitted to the INS. However, there are instances where someone may be eligible for a green card by two or more routes, for instance, a physician working in a medically underserved area may obtain permanent residence through a labor certification or a national interest waiver.

Many of these physicians have retained our firm to submit labor certifications and national interest waiver petitions simultaneously. Also, remember that you can have your employer submit a labor certification on your behalf and your relatives file visa petitions for you at the same time. The last client that retained us to file both for him obtained his green card by winning the visa lottery!

Question #13: I own a company that has 10 illegal alien workers...can i file for them, and what are the chances the ins will visit me to check if they are working for me?

Carl Shusterman: Since there are criminal penalties for employers who engage in a "pattern or practice" of hiring unauthorized workers, I don't think you should be too eager to reveal to the government that you employ 10 illegal workers, by filing labor certifications for them.

Jennifer Wipf: Some of the questions here are duplicates and if you missed the answers, be sure to check for the transcript in the near future. It will be announced on both http://immigration.knowitallmall.com and on http://shusterman.com, as well as in both newsletters.

Question #14: How long does it take to get green card through employment under 245?

Carl Shusterman: It depends on many factors, including what category you are in. See:

http://shusterman.com/vb.html

your country of birth, and the Labor Department and INS processing times in your area of the US. See:

http://shusterman.com/toc-sc.html

Jennifer Wipf: Some of you have asked questions related to deportation and other legal immigration problems, tangential to 245(i)  Since these are so specific to each case, and so complex, I am asking Carl to make a general statement on these:

Carl Shusterman: Please remember that Section 245(i), while an important benefit, was not intended as a cure-all for everyone's immigration problems.

It is not an amnesty, does not protect you from deportation, does not give you a quick work card or green card.  For instance, if a person applies for adjustment of status, he or she must be admissible to the United States.

If he is a felon, has committed immigration fraud, is under a final order of deportation, etcetera, Section 245(i) does not solve these problems. I have posted INS' latest statement regarding Section 245(i) at:

http://shusterman.com/life-ins.html

For a list of facts, audios chat transcripts and government pronouncements about Section 245(i) and the other LIFE amendments see:

http://shusterman.com/life.html

This page is updated several times each week.

Question #15: What about the 3-10 years bars under this new law?

Carl Shusterman: The INS memorandum mentioned in my last answer also deals with this subject. The short answer to your question is that no matter how long a person has resided illegally in the United States, he is not subject to the 3 and 10 year bars unless he departs the United States. Section 245(i) only applies to people who are in the United States.

Question #16: I came to the us with a tourist visa which has expired a long time ago. However I have been working on regular basis, not legally. Can I still take advantage of the 245i to legalize my status in the US without being penalized or deported? Thank You.

Carl Shusterman: Yes

Question #17: Is there any hope, using 245(i) through employment sponsorship, for someone that is here illegally, (crossed border, detained, released on bond and never showed up to the hearing). This person has a parent that is a resident and a sibling that is a citizen.

Carl Shusterman: If you did not show up at your removal hearing, the immigration judge may have ordered you deported in absentia. In order to legalize your status, you will need to have INS approve form I-212. To download this form, see:

http://shusterman.com/immforms.html

However, applying for eligibility under 245(i), although it will not solve all your problems, may be a good start.

Question #18: My status right now is a us citizen. Ten years ago I filed a petition for my family and they found out that I committed fraud, that is why the INS did not process the papers for my family, and now they're here illegally, will they qualify for the 245(i)? I know I cannot sponsor them, but can they get it through work? My daughter is 16, can she also get it through work?

Carl Shusterman: If your wife (or husband) and adult sons and daughters have occupations which are in short supply they may be able to qualify for 245(i) benefits based on the filing of a labor certification by their employers.

Regarding your 16 year old daughter, she will become 245(i) eligible when your spouse's employer submits a labor certification on her behalf.

Jennifer Wipf: Ok everyone, our time is up at the moment. Feel free to stay for open chat if you would like.

Again, a transcript of this chat will be available via this site http://immigration.knowitallmall.com and via Mr. Shusterman's site http://shusterman.com.

Also watch both these pages for announcements on more chats related to other aspects of 245(i) as well as legal updates on the ins and outs of this new law.

Goodnight Carl.

Carl Shusterman: Goodnight. Good luck with your applications!

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