245(i) was a type of immigration reform in the past that allowed persons to ultimately adjust status. Below is an explanation of INA 245(i). However, immigration reform is again needed to help the millions of illegal immigrants in the U.S. right now.
The Nuts and Bolts of 245i
Question: I have read a great deal on this new 245-i law. However, I am still unclear how it affects me and what I need to do to fall under the law. Could you explain?
Answer: Yes, there is confusion around this law. It is imperative to understand how the law works so that you and your friends can take advantage of the law.
You can take advantage of this law in two distinct and different ways. First, if you have any close relatives in the United States, they may be able to petition you. Therefore, please let me know what family you have in the United States.
Question: I have a U.S. Citizen sister, an 18-year-old U.S. Citizen daughter and an uncle. However, I have heard that it takes up to twenty years to get the Green Card if my sister petitions me. Since the deadline on this law is only a few months away, how can my sister help?
Answer: You are correct that it will take about twenty years for a visa number to become current if your sister petitions you. However, the critical and important fact to remember is NOT WHEN YOU ARE ELIGIBLE TO FILE FOR THE GREEN CARD, BUT WHEN THE INITIAL FAMILY PETITION WAS FILED. Therefore, if your sister petitions you prior to the end of April, 2001, you will fall under the provisions of 245(i). Your uncle cannot petition you since there is no category under the immigration laws for an uncle to petition a niece or nephew. Your daughter cannot petition you until she turns 21 years old.
Keep in mind that you will most likely not wait twenty years to obtain your Green Card. Rather, you are doing what you must to get under 245(i). Afterwards, when your daughter turns 21 years old, she can petition for you. Since you would have had your sister petition prior to the deadline, the new petition from your daughter three years from now will allow you to immediately adjust your status and get your Green Card.
Question: While I am lucky to have a U.S. Citizen daughter, I have friends who do not have a U.S. Citizen relative. How can they take advantage of 245(i)?
Answer: They can fall under 245(i) by using a future employer, rather than a family member. They can have an employer petition them. This procedure is known as Labor Certification. It takes a few years to get a Labor Certification, but if filed immediately, the new law will allow them to eventually adjust your status and to obtain your Green Card.
Remember, it is not when your friend would get their Green Card that is important, but WHEN THE LABOR CERTIFICATION IS FILED.
Question: What type of position would be eligible for a Labor Certification?
Answer: You friend should look for an employer who will sponsor them for a position, which they have at least two years of experience. However, if that is not possible, we can file a Labor Certification on their behalf for a position that they have less than two years experience. It will take longer to obtain the Green Card, but your friend can eventually get their Green Card.
To obtain the Green Card based upon a Labor Certification involves three distinct steps. First, you must obtain the Labor Certification. Second, you must file what is known as the I-140 petition. This tells the Bureau of Citizenship and Immigration Services that you are eligible for the position, which is the subject of the Labor Certification. Finally, the third step is the Adjustment of Status phase. This step allows you to obtain your Green Card.
Question: Once I get either the family based petition or the Labor Certification filed, am I safe from deportation?
Answer: Unfortunately, there is nothing in the law, which prohibits the Bureau of Citizenship and Immigration Services from putting you in removal proceedings and trying to deport you. However, if filed properly and immediately, you could be represented in removal proceedings in such a manner that you would eventually be able to have the judge in Immigration Court order that your status be adjusted to that of a Lawful Permanent Resident.
Question: Will I have to leave the United States once I file the necessary petition?
Answer: No. The whole purpose of 245(i) is so that you do not have to leave the U.S. Rather, you can stay in the U.S. and eventually adjust your status to get the Green Card. If you leave the U.S., you are most likely subject to the 3/10-year bar, which will prohibit you from coming back to the U.S. for up to 10 years, even if you filed the necessary petition.
Even if you are here legally and in status, you might want to strongly consider getting the necessary petition filed to fall under 245(i). While it is never recommended that you go out of status, you never know what will happen in the future. Therefore, for insurance purposes, even if you are in legal status, it would be a good idea to get under 245(i). You could even leave the U.S. after filing the petition and later come back to the U.S. and adjust your status to that of a Lawful Permanent Resident.
Question: I have a friend that is outside the U.S. Can he get under 245(i)?
Answer: No. Only if your friend was in the U.S. on December 21, 2000, will he be eligible to fall under 245(i).
As you can see, there are many wrinkles to 245(i). However, if you walk away with only one piece of information, it should be the following: Contact a knowledgeable attorney to get the necessary petition filed before the end of April, 2000. We never know when this chance, if ever, will come about again. Do not be one of the millions of people on May 1, 2001 who will miss the chance to get under 245(i) and either have to remain illegally in the U.S. forever, or leave the U.S. and be subject to the 3/10 year bar.
This could be a once in a lifetime opportunity, so you must take advantage of it. The new law will not remain in effect for much longer, so you must get a sponsor immediately. Otherwise, you will remain out of status with little hope of ever getting the Green Card. President Clinton has given you a great opportunity.
Family Member Petitions
Immigration Bill Introduced into House of Representatives
Real ID Act Has many updates after 2005
Reentry Permit is available for Lawful Permanent Residents