Expert Chat: Section 245(i) - Final Q&A Before Deadline

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

Tips for Claiming §245(i) Benefits

Jennifer Wipf: Folks, as per the chat announcement and welcome message, the chat starts with taking questions which we put in queue for our guest expert.  Let me get these last few and then moderation will be turned on and we'll have Mr. Shusterman answer as many as possible, and the most relevant questions to 245(i).

I have turned moderation on and Mr. Shusterman is with us. We will start questions in a second. Please remember that all answers are of a general nature and should not be construed as legal advice.

Carl Shusterman: Good evening. This is our last chat on 245(i) since the deadline is only 21 days away. I am looking forward to taking your questions and I hope that all of you can benefit from 245(i)

Question #1: If my brother continues to work here illegally after the I-130 petition is filed on his behalf, will that disqualify him from adjustment under 245(i)?

Carl Shusterman: No, it won't.

Question # 2: My wife's employer is applying for her Labor Certification through RIR in the next few days (mid April). They have followed all the relevant procedures for RIR. It is my understanding that my wife will be grandfathered by this LC application even though she has never been out of status. I have been out of status before. My question is whether I will get grandfathered under section 245(i) by my wife's LC application?

Carl Shusterman: Yes, you will.

Question #3: What does "approval in time" really mean? If I file I-140 under employment's "extraordinary ability" category, do I have to submit all documents, or just submit essential documents to meet the deadline of 245(i)?

Carl Shusterman: Just the essential documents.

Question #4: I am here legally on H-1B since last one and half year and working with a company who will be processing my green card. I need to know whether 245(i) is of any help to me?

Carl Shusterman: Yes. Should you fall out of legal status in the future, being grandfathered into the benefits of Section 245(i) will ensure that you will be able to adjust status to the US.

Question #5: I have a question about labor certification. What do I do about our alien employees who have worked for us for over a year? Recruitment within the last six months does not apply here, because the have already been working here for a long time. What does an employer do in this scenario? We didn't find out they were illegal until the first of this year.

Carl Shusterman: If you cannot find US workers who are qualified and available to take these jobs, you can file applications for alien labor certification for each of these employees. However, you must weigh the benefits to you and the employees by doing so against the risk that you will be sanctioned by the INS for knowingly employing unauthorized workers. To date, I am not aware of any employer who has filed a labor certification under 245(i) being sanctioned by the INS.

Question #6: Under the DOJ's/INS' directive issued Mar 26th 2001, to be eligible for 245(i), any relevant visa petition should be postmarked on or before April 30, 2001 but any LC application must be 'properly filed' on or before April 30, 2001 as deemed by the DOL. The DOL considers an
application for LC that is 'filed and accepted' at the local SESA to be 'properly filed.' My question is, what does 'filed and accepted' mean as referred to in the directive?

Carl Shusterman: The application must be in the hands of the SESA by April 30th. The fact that the application was postmarked by April 30th is of no relevance to the Labor Department.

Question #7: Do I have to have an employer to make an application in order to meet 245(i), if I am most likely qualifying for "extraordinary ability?"

Carl Shusterman: No.

Question #8: Is the deadline going to be extended?

Carl Shusterman: Who knows. At least two bills have been introduced in Congress to extend 245(i). H.R.1242 would extend the deadline for filing applications under 245(i) until October 31, 2001. HR.1195 would extend the deadline until April 30, 2002.

You can see both these bills by going to: and scrolling down to "Legislative Developments in 2001."

Question #9: My US citizen brother filed a petition on my behalf last year. I am in the process of looking for a sponsoring employer. What if I find one but after the deadline, can I still avail myself of 245(i)?

Carl Shusterman: Yes.

Question #10: When filing an I-130 for a sibling to qualify for the 245(i) when does one have to pay the $1000?

Carl Shusterman: When your priority date, i.e. the date that INS receives the I-130, is 'current'. See:

Question #11: My question is: My LC is cleared and I am waiting for I-140. My employer filed chapter 11 so I changed jobs. The new employer is ready to file a new LC. Is my old LC of any help under 245(i)?

Carl Shusterman: Yes, your old LC grandfathers you into Section 245(i).

Question #12: Once I am qualified for a V visa will I be allowed to work and travel abroad?

Carl Shusterman: Yes, once you actually receive the visa you will be.

Question #13: My mother has been here since 1981 but left to Peru three times during those years. She only has proof of jobs she worked at and witnesses that she was here. Can she still apply for this new law?

Carl Shusterman: Yes she can, if she has a qualifying relative or employer to petition on her behalf and can satisfy the INS that she was present in the US on December 21, 2000.

Question #14: How long does a labor certification take to get done? And how much does it cost per individual?

Carl Shusterman: We charge approximately $7,000, plus costs to obtain permanent residence for a person through Labor Certification. As far as waiting times, see: http://shusterman.com/dolsurvey.html

Question #15: My husband is on an H-1B, and he resigned recently. If he cannot find another job and my I-140 ( I am a nurse petitioned by a hospital) is submitted before April 30, are we qualified for the 245(i) when my petition gets approved?

Carl Shusterman: Yes, you and your husband will be qualified for 245(i) as soon as your petition is filed.

Question #16: I have an approved petition from 1996 (mother's). I have a final order of deportation against me though. It looks like there is a slim hope given by the new rule about motion to reopen. All my family are citizens and permanent residents. No criminal records.Can you explain my position to me in this situation?

Carl Shusterman: If your priority date is current but your final order of deportation is over 90 days old, you must obtain the consent of the INS, and file a joint motion to reopen your deportation proceedings.

Question #17: Can an alien who is grandfathered by 245(i) work without authorization after April 30, 2001 until he eventually adjusts status?

Carl Shusterman: Not legally.

Question #18: How does working without authorization after April 30 2001 affect a grandfathered individual?

Carl Shusterman: It doesn't.

Question #19: I am a CSS1 class member and INS has just replaced my Employment Authorization card. Meanwhile, a couple of years ago INS denied my H-1B. My Labor Certification was approved before the passage of Section 245(i). My wife just just became a US citizen. Should I go ahead and have her file for me or wait since I already have an approved Labor Certification and CSS pending? Also, upon receipt of my green card can I be her dependent which would qualify me for citizenship in three years?

Carl Shusterman: Yes, have your wife apply under 245(i) for you.

Question #20: Do the 245(i) benefits and deadline apply for a citizen's out of status mother?

Carl Shusterman: §245(i) has no relevance for "immediate relatives" of US citizens, i.e. parents, spouses and children of US citizens, who entered the US legally. (They can apply anyway).

Question #21: Why do K-3 visa applicants have to apply in the USA while V visa holders can apply directly over seas?

Carl Shusterman: Persons can not apply for K3 visas in the US. They must apply at a US consulate in the country where the marriage took place. Persons eligible for V visas may apply at US consulates abroad. Persons present in the US who are eligible for V status may apply in the US directly to the INS as soon as INS regulations are issued and become effective. For more information about the new K and V visas, see:

http://Shusterman.com/life.html and scroll down to "Government Interpretations of Life Act Amendments."

Question #22: I am petitioned by a hospital. I will be out of status this April, so will my family (H1, H-4). Does each family member pay the $1,000 individually?

Carl Shusterman: The $1000 fine is paid at the time that applications for adjustment of status are submitted. Small children are exempt from the $1000 fee.

Question #23: My sponsor shows a loss this year. Can I at least qualify for 245(i), even if there is a danger that I can be rejected for a Labor Certification?

Carl Shusterman: Yes.

Question #24: I sent in all forms for 245(i) (I-130, I-485, I-485a, etc.) in February. Because INS had not issued its regulations about physical presence yet, I did not send in my proof. Should I send in my proof now, or will they request it? Will this delay the adjustment process? Thank you.

Carl Shusterman: Proof of physical presence is not required to be submitted together with the visa petition. However, it is required to be submitted along with your application for Adjustment of Status. If you have already applied for Adjustment of Status, make sure to bring proof to your 245(i) interview that you were physically present in the US on December 21, 2000.

Question #25: Does anyone know what type of form is to be submitted to the Labor Department and what they mean by it should be approvable by the DOL?

Carl Shusterman: The forms are ETA-750A and B. These forms and others can be downloaded for free at http://shusterman.com/dolforms.html . The application must be genuine (approvable) in that the employer cannot find a US worker who is both qualified and available for the job.

Question #26: What are the requirements for the employer, does his business size and number of years in business matter? What forms are needed?

Carl Shusterman: Although any employer can submit an application for an alien labor certification, in general, I advise clients to choose employers who are financially viable, have been in business for some time and who employ other workers. Of course, such advice would not apply to all occupations. For example, we are submitting Labor Certifications for over two dozen families for nannies and housekeepers.

Question #27: What are the costs to have your law firm help with a company sponsoring someone?

Carl Shusterman: If a Labor Certification is involved, we typically charge $7,000 plus costs.

Question #28: Can a Labor Certification contain essentially the same information for two different employees? They applied from the same ad and were subsequently hired.

Carl Shusterman: Yes

Question #29: How long for the total process from labor certification to green card?

Carl Shusterman: See: http://www.shusterman.com/toc-sc.html

Question #30: If I am eligible under 245(i) should I still wait for the Priority Date to become current?

Carl Shusterman: Yes

Question #31: I am citizen. Can I apply for my mother in law under 245(i), who is out of status?

Carl Shusterman: No. See: http://shusterman.com/family.html

Question #32: My visa expired 2/11/01 can i apply under 245(i) ?

Carl Shusterman: Yes, if you have a qualified relative or employer to petition for you.

Question #33: Do I still have time to apply for labor certification? When I call to set up the appointment with your firm, how can I select the lawyer? Does it depend on the case or availability?

Carl Shusterman: Yes you have time to submit a labor certification still. When you call our firm for an appointment, you are free to ask for a consultation with any of our attorneys. However, in general, most clients have their initial consultation with me and I delegate the work to one of our attorneys or legal assistants. See http://shusterman.com/intake.html

Question #34: Is it possible to get a work permit after filling for 245(i)?

Carl Shusterman: Only after you file your application for Adjustment of Status.

Question #35: I am on a J-1 visa, can I qualify for the 245(i), through an employer or relatives?

Carl Shusterman: Yes, but if you are subject to the two year home residency requirement, you are still obligated to seek a waiver.

Question #36: I am using EAD, on leave of absence with employer A. I applied for an H-1B and started full time with employer B on an H-1 transferred from employer A. Should I use 245(i)?

Carl Shusterman: It sounds like you are legally employed in the US. Although you may not need to use 245(i), you may wish to file your labor certification before the end of the month, as insurance against the contingency that you may fall out of legal status in the future.

Question #37: I am on an F-1. I have never been out of status, but if I do fall out of status in the future I would like to take advantage of 245(i). If an employer files a labor certification for me before April 30, it requires the info of the H-1/job offer, so is it necessary that I file H-1 petition simultaneously before April 30 or can it be done later? And should I have to work with the same employer at some point of time or can I work with another employer?

Carl Shusterman: You can have an employer submit an application for an alien labor certification by April 30, 2001 in order to qualify for 245(i). Whether or not you ever apply for H-1B status is irrelevant to 245(i) grandfathering.

Once you are grandfathered under 245(i), you are not barred from obtaining a green card through another employer, through qualifying relatives or through the visa lottery.

Question #38: I am here in the US on a B-2 Visa which expired on December 1, 2000. I have two petitions filed at the TSC, 1-140 from a hospital where I'll be working as a nurse, and 1-130 from my husband who's a permanent resident. I was present here when Clinton signed 245(i) into law. Am I qualified for section 245(i)? We are leasing an apartment with my name on it, have car insurance, and state issued drivers licenses, are these sufficient to prove my physical presence? Thanks.

Carl Shusterman: Yes, you qualify.

Jennifer Wipf: Everyone, Mr. Shusterman will be leaving now. He's overstayed a bit. We got to a lot of questions. I hope the answers have been helpful. A transcript of our last 245(i) chat will be on our front page this week http://immigration.knowitallmall.com. Tonight's will also be up as soon as possible.

Carl Shusterman: Thank you for all of your excellent questions. I think we set the world speed record for the most questions answered during a 60 minute chat tonight. I hope as many of you as possible will qualify for benefits under 245(i) before the end of the month.

Since the chances that 245(i) will be extended are murky at best, I'm sure that many of you who are in the technology sector are concerned about the lay offs which have been occurring since the beginning of the year. A lot of the information on television and in the newspapers regarding how lay offs and terminations will effect H-1B workers is either unclear, or just plain wrong. Please join us next Monday, April 16th for a free online chat entitled ""What to Do if You are an H-1B and the Boss Gives You a Pink Slip."

Also, I expect the May visa bulletins to be published later this week, possibly as early as tomorrow. Charles Oppenheim, the State Department Visa Bulletin guru has made some startling predictions about the movement of the EB2 and EB3 categories, which I think you will find interesting. His comments and a detailed report of my meeting with Senator Brownback, the new chairman of the senate subcommittee on immigration, will be published in the April issue of Shusterman's Immigration Update later this week.

Good night and good luck to everyone!

Jennifer Wipf: Good night Carl, and everyone. I'm turning off moderation so you can speak freely amongst yourselves.

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