245(i) is Back! Who Qualifies? - Q&A

Join the Discussion 'What Can I Do?' ACHIMO515     Related Resources • E & L Visa Benefits • Understanding 245(i) • Premium Processing • Daily Immi News • Shusterman Chats    From Other Guides • Human Rights • Race Relations • U.S. Politics  Elsewhere on the Web • Duration of EAD • Obtaining L-1 Status • Treaty Traders • Treaty Investors

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

Qualifying Under the New Section 245(i) Law

Jennifer: Welcome Carl.

Carl Shusterman: Good evening everyone.

Jennifer: Before we start I want to remind everyone that questions and answers are of a general nature and should not be construed as legal advice.

Carl Shusterman: I have an important announcement to make: I have just received a news release and several fact sheets published by the INS, which I will post on my web site following the chat. These announcements concern a series of INS regulations which will be published in the Federal Register tomorrow morning.

One rule would restrict the amount of time B-2 visitors could remain in the United States. Another would greatly restrict the ability of a visitor to change his or her status to student while in the U.S. The third regulation concerns the mandatory surrender within
30 days of persons under final orders of deportation or removal.

In addition, turning our attention to section 245(i), the Senate has decided to remove
the 245(i) amendment from the border security bill. This may be an ominous sign, for the chances of 245(i) being passed anytime soon.

However, the Bush Administration continues to press for an extension of section 245(i) until November 30th, 2002.

Let's go to the questions.

Question 1: My sister is a US citizen and she filed for me last week. I have been here with my family for 2 years.
How do we benefit under 245i, am I able to get an employer to file labor certification since my sister filed for me?

Carl: Should the latest version of section 245(i) be enacted into law, either the familial relationship, or in the case of an employer-based case, the application for labor certification, must have been in place on or before August 15, 2001 and you must have been physically present in the United States on December 20, 2000. There's no requirement that your sister submit a visa petition on your behalf by August 15, 2001, only that she was your sister on that date. Your next step is to have an employer submit an application for labor certification on your behalf to determine whether there is a qualified U.S. worker available for your job.

Since all employment-based preference categories are current, as soon as the Labor Department approves the application and the INS approves your employer's visa petition, you will be immediately eligible to submit an application to adjust your status to permanent resident.

Question 2: I am on bench now with sponsoring employer...he is willing to offer future job upon GC approval...got EAD, if INS issues RFE for paystubs...will it be a problem...can 245(i) save me from this situation?

Carl: 245(i) waives the following two provisions of the law:

(1) Section 245(a) which requires persons wishing to adjust their status in the U.S. to have a lawful admission or be paroled into the US and

(2) Section 245(c) which prohibits persons who have failed to maintain lawful non-immigrant status or who have been employed in the United States without authorization, from adjusting their status to permanent resident in the U.S.

Since the problem in your case has nothing to do with either of these two requirements, section 245(i) is inapplicable.

Question 3: Hi. My wife is in US since 11/1998. Her I-94 got expired on 02/11/2001, but she has valid visa until 05/2003. Is she out of status? If so, is 245 (i) applicable for her?

Carl: Your wife is clearly out of status and she has overstayed the length of her authorized stay by over one year. Whether she is eligible for the benefits of 245(i) depends largely on whether she had an application for a
labor certification or visa petition submitted on her behalf within the time period designated by law.

Question 4: What does the established familial relationship mean and how hard is this going to be to fight if marriage was not established? I was not married until September 14, 2001. However me and my husband were engaged and lived together previous to August 15, 2001. Will we be able to fight familial relations established? Plus we have a i-139 petition filed in November and approved in January. Will this help?

Carl: The bill pending in Congress, requires that the familiar relationship be established by August 15, 2001.  Therefore, if the relationship is based on marriage, the marriage must have existed on that date.

Question 5: I entered USA on C1/D and my lawyer has missed the date to file 245(i) the first time and then she has filed in October 2001. Now I am going to marry to a USC, will the new extension help me?

Carl: Unfortunately not.

Question 6: I arrived in March 2001 on a B1 visa, valid till November 2001. Do I qualify for 245i?

Carl: No, because you were not physically present in the United States on December 20, 2000.

Question 7: We came here on H-1B and H4 visa before December of 2000, but we were out of status since then. How can we benefit from 245i? What do we have to do to remain legally here without going back to our country?

Carl: You need to have an employer file an application for labor certification on your behalf or be the beneficiary of an employment-based or family-based visa petition. Since the proposed extension, which is pending in the Senate, requires the labor certification to have been filed on or before August 15, 2001, unless the proposed law is made less restrictive, the submission of an application for labor certification at this point would not qualify you for future 245(i) benefits.

However, the submission of an employment-based visa petition (based on extraordinary ability, national interest waiver, etc.) filed now would do so as would the submission of a family based visa petition based on a familial relationship that was in place on August 15, 2001.

Jennifer: Since so many of these questions are extremely similar, Carl would like to make a general comment to help you.

Carl: Many of the questions that we are receiving state little more than the person's non-immigrant visa category, their date of entry and their present status. Then the questioner asks whether they are eligible for benefits under 245(i). The answer to all of these questions is the same:

If you were physically present in the United States on December 20, 2000, and an application for labor certification was submitted on your behalf on or before August 15, 2001, or if a family-based petition was submitted after that date based on a familial relationship which existed on August 15, 2001, then, you are qualified for benefits under 245(i) under the bill which passed the House of Representatives and is currently pending before the Senate.

Question 8: My wife is only a resident awaiting her green card and my uncle is a US citizen. Can either one sponsor me (I overstayed a visitor visa years ago) under the 245i extension?

Carl: If you and your wife were married on August 15, 2001, and you were physically present in the U.S. on December 20, 2000, your wife may petition for you under the 2A family preference category. And you may be eligible for future benefits under 245(i) if the extension is enacted into law.

Jennifer: PLEASE hold off on questions, it keeps erasing what I'm typing and delaying the answers. Sorry.

It looks like remaining questions are duplicates. If you are still confused, please remain in the room until after the official chat. In the meantime, Carl has some resources for you:

Carl: Section 245(i) is an extremely complex section of the law. If you don't totally understand what this section of law means, you are not alone. Even Senator Robert Byrd, who is single-handedly stalling the 245(i) extension in the Senate, has mistakenly referred to it as an "amnesty." Fortunately, there is plenty of information explaining Section 245(i) on the Internet on our Web site at

http://shusterman.com/toc-1997.html. It contains

(1) a five-minute audio explaining section 245(i),

(2) links to four chat transcripts regarding 245(i),

(3) and a section of frequently asked questions about 245(i).

Each of these resources concerns the original 245(i) which was enacted in 1994, the first 245(i) extension in 1997, and the second 245(i) extension, enacted in December 2000. If you put this information together with what you learned during tonight's chat, you will have a very complete understanding of who is eligible under Section 245(i) and how it helps individuals who would otherwise be blocked from obtaining permanent residence to adjust their status in the U.S.

Jennifer: Thank you for your questions this evening, please join us for another free online chat entitled "INS Cracks Down on Visitors, Students and Absconders."

This chat will take place on Monday, May 6th, 2002.

Please check immigration.knowitallmall.com and shusterman.com for details. Good night everyone.

Current Features

Back to the front page


Grab an immigration chat buddy!

  See What's Going on in Our Help/Support Forum: