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

The Final Countdown for Claiming §245(i) Benefits

Jennifer Wipf: OK everyone: I am calling Mr. Shusterman, turning on moderation and starting with the long list of questions I have gotten from you so far. Please hold additional questions until we get through this list. The way our chats work is that I collect questions ahead of time, and then we go through them and answer one by one. I am trying to reach our guest expert, please give me a moment. Great, Mr. Shusterman is with us now.

Everyone, please remember that all answers are of a general nature and should not be construed as legal advice.

Carl Shusterman: Good evening everyone. Sorry to be late, but I promise to stay late, so let's get to the questions.

Question #1: My friend has overstayed about 5 months (his H1 expired after 6
years), if he files I-140, will he benefit from 245(i)? He might qualify for extraordinary ability. And If INS denies his petition, will he be deported very soon?

Carl Shusterman: In most cases, a person who is sponsored through employment must have their employer submit an application for an alien labor certification before the employer can submit a visa petition to the Immigration Service. In any event, if your friend has or gets an approved labor certification, then he is already qualified under 245(i). If he is applying under a category which does not require a labor certification, for example, National Interest Waiver, Outstanding Researcher, or Person of Extraordinary Ability, the visa petition must be filed by April 30, 2001 for him to qualify under 245(i). In addition, the petition or application must be "approvable when filed."

If there is no labor certification and the petition is denied, whether your friend is eligible for Section 245(i) depends on whether the petition was approvable when filed. If the petition was denied because your friend was laid off or the company went out of business, he may still be eligible for benefits under 245(i). However, if it was denied because he did not meet the qualifications of the category that he was applying under, then the petition was not approvable when filed, and he is not eligible under
Section 245(i).

When the INS denies a petition, the petitioner is given an opportunity to appeal the denial to INS' Administration Appeals Office in Washington D.C. However, if your friend has overstayed his visa for over 180 days, and the petition is ultimately denied, he could be subject to the three year bar if he leaves the United States.

Question #2: Hello Mr. Shusterman. My sister in law came to this country last year on a tourist visa. She overstayed and is working illegally for a company. Can she apply for the 245(i) if I "sponsor" her? will she be able to work if she applies?

Carl Shusterman: If you are a citizen of the United States and your brother, her husband was present in the United States on December 21, 2000, the day that the law was signed, you can apply for your brother before April 30, 2001 and both your brother and sister in law will be 245(i) eligible.

I would like to stress, as I have during our previous chats, that Section 245(i) is not an amnesty, doesn't provide the person being petitioned with a work permit, and does not immunize them from deportation. See:

http://shusterman.com/245i-faq.html

Question #3: How can the immigration dept. deport if the new law gives permission for persons here illegally to apply for a job?

Carl Shusterman: What you have to understand is that the mere filing of a visa petition has never made a person legal to be in the United States. If they entered illegally, overstayed their visa, violated their status, or are otherwise deportable, the INS may deport them whether or not a visa
petition has been filed on their behalf. In the family categories alone, over three and a half million persons have approved visa petitions, but since their priority dates are not yet current (see:
http://shusterman.com/vb.html ) if they are present in the United States illegally, they may be subject to removal proceedings. However, it is important to stress that at least 500,000 people are eligible for benefits under 245(i) and the INS has stated repeatedly that it does not intend to use applications and petitions filed under this section of law as a basis for deporting people.

Our law firm has submitted over 1,000 applications and petitions to qualify people for benefits under 245(i) and not one of these people has been placed under removal proceedings.

Question #4: I'm an H-1B Visa holder and I've been legal all the time. My employer has filed an Alien Labor Certification for me in January. Am I qualified for 245(i)? Thank you.

Carl Shusterman: Since your labor certification was filed before April 30, 2001 you are already qualified for benefits under Section 245(i). However, remember that unless you become illegal in the future, you will not need to utilize Section 245(i) to obtain permanent residence.and will not have to
pay the $1000 fine associated with Section 245(i). For you, qualifying for benefits under Section 245(i) is a "insurance policy" should you ever become illegal in the United States. Under 245(i) you will still be able to pay a fine and obtain a green card.

Question #5:  I am a US citizen and recently got married in India. I applied I-130 petition for my wife, but I found about this new law which will help me to bring my wife quicker.please explain me how?

Carl Shusterman: You are referring to another of the LIFE amendments, the new "K-3" visa. This new visa will enable US citizens to bring their spouses into the US on a temporary visa after their marriage. Until theINS issues regulations to implement this new law, hopefully some time this spring, no K-3 visas will be issued. For more information on the K-3 Visa and the LIFE Amendments in general, See:

http://shusterman.com/life.html

Question #6:  I am green card holder, I want to marry a guy who has an H-1 visa?? if I apply for his immigration before April 30, can he stay till the process is complete and what will will be his status during the process period???

Carl Shusterman: Again, filing a visa petition does not make someone legal in the United States. If possible, you should consider becoming a naturalized citizen of the US, or your fiancιe should consider immigrating through his employment. If you file a petition for your future spouse, you
must use the family 2A category which is backlogged approximately 4.5 years. See:

http://shusterman.com/vb.html

This is not to say that you should not get married before April 30th and file a visa petition for him by that date; It just means that Section 245(i) is not a cure-all for whatever ails you.

Question #7:  My wife is a GC holder and she applied for me which was approved but the priority date was off by 4 years. However by the time out date came up I was ordered deported, so am here illegally, can I benefit from 245(i)?

Carl Shusterman: Since you were ordered deported, you must remain outside the United States for a minimum of ten years before you can return, unless you obtain permission from the attorney general to re-enter the United States at an earlier time. This is an example of a ground of inadmissibility. Other grounds of inadmissibility include: the three and the ten year bars, conviction of a serious criminal offense, fraud, and so on. Section 245(i) does not waive any grounds of inadmissibility.

Question #8:  I am a permanent resident but my spouse is on an F1 visa can she qualify under section 245(i) of the LIFE act for permanent residency? She was physically in the US before the LIFE act was signed into law.

Carl Shusterman: Yes she can if you file a petition on her behalf by April 30th, 2001.

Question #9:  If I qualify for 245(i) (no status, but no violations as well): what forms and documents should my potential employer submit along with I-140?

Carl Shusterman: It depends on the facts of your case, please read the instructions on Form I-140, at: http://shusterman.com/immforms.html

Question #10:  My father, a US citizen, filed a petition for immigration on my behalf in June 1994, for which we received an approval notice. I fall under the F1 category but there is a 13 year backlog in priority dates in the Philippines. If I am in the US on a tourist visa and arrived before Dec. 2000, do I qualify for LIFE Act/245(i)?

Carl Shusterman: Yes.

Question #11:  I have a sponsor who has a restaurant. He will sponsor me as a cook but shows no profit last year. Shows loss..so he did not pay taxes.What should we do? Thanks.

Carl Shusterman: You may want to look for another employer. In general, the best employers to sponsor you, are those which are financially viable, have been in business for a while, and have several other employees in addition to yourself.

Question #12:  Hi, I'd like to know if I can take advantage of 245(i) if I had won the DV-2000 lottery which expired in September 30,2000, or apply for LULAC since I have necessary document proving my eligibility for LULAC but I was unable to register for it.

Carl Shusterman: No, you do not qualify for Section 245(i). In order to be eligible, a qualifying relative must file a visa petition on your behalf or an employer must file a labor certification application or a visa petition for you by April 30, 2001. Winning the lottery, submitting an application for late amnesty, requesting asylum, or applying for a temporary visa are not grounds for qualifying for benefits under Section 245(i). See:

http://shusterman.com/245i-faq.html

Question #13: My friend gave birth to a child here in the states, she is illegal. Can she now apply under 245(i)?

Carl Shusterman: In order for a citizen child to apply for his parents he must be over 21 years of age. Your friend should look for another way to qualify under 245(i) unless she doesn't mind waiting until her child's 21st birthday to immigrate.

Question #14:  why does a relative visa have to be filed by April 30th, what happens if they don't file by April 30th?

Carl Shusterman: The petition must be filed by April 30th, 2001 to qualify for Section 245(i) because the law signed by president Clinton on December 21, 2000 says so. A petition filed after that date may accord a benefit on your relative but if your relative has ever been illegal in the United
States, he or she will not be able to adjust status in this country. The problem is that if a person has been unlawfully present in the United States for over 180 days or more than one year, if they leave the US to immigrate through a US embassy abroad, they are barred from returning to the United States for three or ten years, respectively. Therefore, their ability to adjust their status without leaving the US is extremely important. Section 245(i) will allow them to do so but only if you file a petition on their behalf by April 30, 2001.

Jennifer Wipf: A transcript of this chat will be available in the near future.

Question #15:  Is it true that provisions of the LIFE Act only qualify for petitioners who are permanent residents? What about the status of petitions by US citizens for unmarried children over 21, filed 3 or more years ago? Are they qualified?

Carl Shusterman: No, only persons under the family 2A category (spouses and children of permanent residents) must qualify for "V" visas. Your example concerns persons in the family 1st preference category.

Question #16: My brother is a permanent resident here in the US for more than 5 years and he already in the process of his naturalization application. Can he sponsor me as a relative so that I can benefit from 245(i). If yes, what are the things he needs to do or submit?

Carl Shusterman: Your brother can sponsor you under Section 245(i) only if he naturalizes as a US citizen and submits a visa petition on your behalf by April 30, 2001.

Jennifer Wipf: We took a bunch of questions, and many of them were duplicates. You may be confused because these laws are indeed confusing, but we have covered all the questions asked. A transcript will be on line for you to study, weeks before the deadline.

Carl Shusterman: I will be off to Washington D.C. on March 22nd for a meeting with the new chairman of the Senate Subcommittee on Immigration, Senator Sam Brownback. I notice that there is still a lot of confusion about how to qualify for Section 245(i) and what benefits Section 245(i)
provides. For those of you who are still confused, I suggest reading some of the articles on our website at http://shusterman.com/life.html   and if you desire a legal consultation please see:
http://shusterman.com/intake.html . My next chat at Born Abroad will concern the LIFE Amendments and Section 245(i) benefits, again.  I look forward to answering more of your questions then.

Jennifer Wipf: Good night Carl :) Everyone - you can stay for open chat to discuss this if you would like.

Carl Shusterman: Good night all.

Jennifer Wipf: Moderation is off - you can speak freely amongst yourselves.

Click here for an FAQ style recap

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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