Jennifer Wipf: Everyone, let's welcome our guest expert, Carl Shusterman. Please remember that these questions and answers are of a general nature and should not be construed as legal advice.

Carl Shusterman: Good evening everyone. Let's go right to the questions.

Question #1: Who will qualify for this new 245(i)?

Carl Shusterman: In order to qualify for the new 245(i) (assuming it is enacted into law) a person must:

1) be physically present in the United States on December 21, 2000;

2) have a relative or an employer file a visa petition or application for labor certification before a certain date;

and 3) when their petition is approved, file an application for adjustment of status, be otherwise eligible for permanent residence and pay a fine, which is currently $1000, to the Immigration and Naturalization Service.

Question #2: I just found out about this. Is the only difference between this 245(i) extension and the last one the date? What is the new date?

Carl Shusterman: It is a little more complicated than that. Under the old 245(i) it was enough that the labor certification or visa petition was submitted by April 30, 2001. Under the version that was passed by the Senate on September the 6th, and which is waiting approval by the House of Representatives, if the petition is submitted by a family member, the familial relationship must have existed before August 15, 2001.

This means that if you marry an American citizen or a permanent resident after that date, you would not be eligible for 245(i), and they could not petition on your behalf. However, other relatives may do so at
any time before the expiration of the law, because presumably, they were your relative before August 15, 2001. The object of this limitation is that some members of Congress were concerned about potential immigrants entering into sham marriages in order to obtain permanent residence through section 245(i).

The situation is a bit more complex for those seeking permanent residence through their job. The proposed law does not dictate that the employer-employee relationship must have existed at a certain point in
time, only that if an application for labor certification is required, it must have been filed before August 15, 2001. Of course there are many people who immigrate through their job who do not require labor certification. For these people there is no limitation on when the employment-based immigrant visa petition must be filed except that the
filing takes place before the projected termination date of the law on April 30, 2002. Such persons include:

1) Registered nurses and physical therapists,
2) Persons of extraordinary ability,
3) Outstanding professors and researchers,
4) Multi-national executives and mangers, and
5) Persons who qualify for national interest waivers

For more information about the above categories, see:

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

Question #3: What are the chances that the §245(i) extension will be enacted into law?

Carl Shusterman: Not that I have a crystal ball, but I do not expect there to be any different treatment of 245(i) applicants because of the attacks on the Pentagon and the World Trade Center. The extension of 245(i) that was approved by the Senate on September 6th, was not at all controversial. In fact, the Senate approved the bill, S.778, by unanimous consent.

The House of Representatives agreed in principle to pass the bill identical to S.778 and President Bush commended the Congress for supporting an extension of Section 245(i) The only difference I see is, because of the
terrorist attack, It may take the House of Representatives longer to pass the 245(i) extension.

Question #4: I have a question. I am on J1 and was on J1 in Dec. 2000. Can I take advantage of 245(i), ask my U.S citizen brother to petition for me? And complete my 2 year home residency requirement back home or via hard
area service, and after that immediately get my green card without any long delays usually encountered with petitions through brother?

Carl Shusterman: You should definitely have your brother file a petition for you as soon as possible. As your question seems to recognize, qualifying under Section 245(i) does not exempt you from the two-year foreign residency requirement, nor from any other ground of inadmissibility. However, neither does qualifying for
benefits under 245(i) give you the right to remain in the United States,protect you from removal proceedings or speed up the long wait for a green card after your brother files a petition on your behalf.

Question #5: I applied for 245i before April 30,2001. One of my company sponsored me for 245i to do labor for computer job. I am thinking of doing RIR. My question is do you think it is good idea to do RIR in this market
situation even though I am doing RIR for computer job.

Carl Shusterman: It would be a little foolhardy for me to advise you about the chances for success for an RIR labor certification without knowing your job duties, salary, employer, or location. However, there is definitely no harm in doing the RIR recruitment. If there are qualified Americans, obviously you won't want to pursue the RIR application. However, if there are no Americans qualified and available for your job, applying for labor
certification under RIR would speed up your application tremendously. See the latest Department of Labor waiting times at:

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

Question #6: If someone is in deportation proceedings, can a sibling still petition for them?

Carl Shusterman: Yes. However, unless your removal proceedings drag on for more than 12 years, your brother's petition will not save you from having to leave the United States in the meantime. On October 5th, our firm is arguing a deportation case before the Federal Court of Appeals, which was initiated by the government over 12 years ago!

Question #7: We were engaged before 8/15, but got married on 8/18. Are we still eligible under 245i? Thanks.

Carl Shusterman: No. However, unless the foreign born spouse entered the United States without inspection, he or she may still be able to adjust status to permanent residence without using section 245(i). For example, if
one spouse is a citizen and the other is foreign-born, the foreign-born spouse is considered an "immediate relative" and may adjust status to permanent residence without using section 245(i) or paying the $1000
fine. Alternatively, if one spouse is a lawful permanent resident, he or she should naturalize as a US citizen before applying for the spouse thereby avoiding the §245(i) penalty provision.

Question #8: Who guarantees you're not deported once you apply for 245(i)?

Carl Shusterman: The INS has emphasized time and time again that it will not use Section 245(i) as a "sting" operation to catch people. Our law firm has submitted hundreds and hundreds of labor certifications and visa petitions qualifying our clients for benefits under 245(i), yet none of the beneficiaries of these petitions and applications have been placed under removal proceedings.

Question #9: Is a 245(i) beneficiary considered "legal", during the stay,until he gets his status adjusted here?

Carl Shusterman: No, the 245(i) beneficiary only becomes legal after his visa petition is approved, his priority date is current, and he applies for adjustment of status. At that point the INS will issue him a work card and
allow him to stay in the United States.

Question #10: Can a §245(i) beneficiary apply for work permit, SSN and driver's license/photo ID?

Carl Shusterman: Remember that you can only apply for a work permit on or after the date that you apply for adjustment of status under 245(i). With your work permit you can apply for a social security card, driver's
license, bank account, etc.

Question #11: Will the August 15th date stand or can it change?

Carl Shusterman: Most immigration advocates, including myself, are not happy about the August 15th date. Remember, however, that this is the second extension of Section 245(i). The original law allowed people to submit labor certifications and visa petitions from October 1, 1994 to January 14, 1998. Then on December 21, 2000, the law was extended with certain modifications and allowed persons with petitions or labor certifications filed on their behalf between January 15, 1998 and April 30, 2001 to qualify for benefits under 245(i). The latest bill, if enacted into law, would be the second extension of 245(i). It is by no means certain, but it is reasonable to expect that there may be further extensions of section 245(i). For some reason, whenever an extension is passed people run
to our office and demand that we submit a visa petition or labor certification immediately.

My advice, however, is that anyone interested in qualifying for benefits under Section 245(i) should submit their application now, and not be involved in the huge ""traffic jam"" which will develop as soon as the law
is passed.

Jennifer Wipf: Everyone, Carl's time is up, but you are welcome to stay here and chat openly, I will be turning off moderation once I convey his final message for this evening.

Carl Shusterman: Thank you everyone and good night.

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