FAQ: Section 245(i) LIFE Act 2000

Note: The Immigration and Naturalization Service (INS) is now called the U.S. Citizenship and Immigration Services (USCIS).

1. What is the new Section 245(i) provision of the Legal Immigration and Family Equity Act of 2000 (LIFE Act)?

The new Section 245(i) allows certain eligible people (see answer to question #3) to become permanent residents without leaving the U.S. Eligible people had until April 30, 2001 to file an immigrant visa petition (an I-130, I-140, or I-360) with the Immigration and Naturalization Service (INS) or a labor certification application with the Department of Labor (DOL) in order to take advantage of this new provision.

IMPORTANT NOTE: The LIFE Act adds a new “physical presence” requirement: People who filed a petition or labor certification after January 14, 1998 but before April 30, 2001 must prove that they were in the U.S. on December 21, the date this measure became law, in order to be eligible to use Section 245(i).

Filing an immigrant visa petition is the first step in a two-step process. The second step is acquiring permanent residency (the “green card”) by filing an adjustment of status application (Form I-485). Even if a person does not apply to adjust status until after April 30, 2001, as long as the petition or labor certification was filed before that date, if he/she is qualified, their eligibility will not expire.

2. Why is this new Section 245(i) needed?

Because Congress phased out the original Section 245(i) on January 14, 1998. (The original Section 245(i), authorized in 1994, allowed eligible people who were out of status to adjust their status in the U.S. upon payment of a fee of $1,000.) People who already qualified as of January 14, 1998 were “grandfathered” to receive the benefits of Section 245(i). However, many qualified people missed the January 14 deadline and others since have fallen out of status. The extension of Section 245(i) until April 30, 2001 provided a four-month window of opportunity for people to protect their ability to adjust their status in this country.

3. Who is eligible to qualify for the new Section 245(i) provisions?

A person who is eligible for permanent residence based on a family relationship or job offer, and who wishes to adjust status to permanent residence without leaving the U.S., could benefit from the new Section 245(i). Most people who entered the U.S. without inspection, overstayed an admission, acted in violation of the terms of their status, worked without authorization, entered as a crewman, or were admitted in transit without a visa, are considered out of status and would be unable to complete the process to become a permanent resident in the U.S. without Section 245(i).

4. What are the three and ten year bars, and why should they be of concern?

Without Section 245(i), out of status people needed to return to their home countries and there complete the process for an immigrant visa at the U.S. consulate. However, if people have been out of status in the U.S. for more than 180 days, they would be barred from reentering the U.S. for at least 3 years, and perhaps as long as 10 years. Under Section 245(i), an eligible individual can remain in the U.S. to obtain permanent residence through adjustment of status, and thus never trigger these entry bars. (Once permanent residence is obtained, these entry bars no longer apply.) Thus, it is particularly important that people subject to the bars not leave the U.S. at all until they become permanent residents.

5. What does the new physical presence requirement mean and how do you prove compliance with it?

Under the new law, beneficiaries of an immigrant petition or labor certification that is filed after the old deadline of January 14, 1998, but before the new deadline of April 30, 2001, must prove that they were physically present in the United States on the date that LIFE Act is signed into law, December 21, 2000. People can prove compliance by submitting evidence of physical presence in the U.S. This evidence could include any receipts for December 21 that include the beneficiary’s name.

6. How does a person take advantage of the new Section 245(i)?

To take advantage of the new Section 245(i), a relative must submit a visa petition to the INS on behalf of the person seeking Section 245(i) benefits. The U.S. citizen or legal permanent resident who is sponsoring the Section 245(i) eligible person must file (and sign) the petition. In addition, an employer can submit a labor certification to the DOL on behalf of the person seeking Section 245(i) relief. Both petitions and applications must have been submitted on or before April 30, 2001. The INS or DOL does not have to approve the petition or application by that date. It just needed to be filed by April 30, 2001.

Legal permanent residents can petition for their spouses and unmarried sons and daughters (of any age). U.S. citizens can petition for their spouses, married and unmarried sons and daughters of any age, parents, and brothers and sisters.

It is important to know that battered immigrant spouses can submit petitions for themselves, as can applicants for national interest waivers.

7. Do people have to adjust status using the same category in which they petitioned?

No. It is important that people eligible to use Section 245(i) have filed their petitions and applications before April 30, 2001 using the eligibility they had at the time they filed the petition. This initial filing preserves the ability to adjust! People can switch to another category when they become eligible for that category if that switch allows them, for example, to more quickly adjust their status.

8. What is the fee and when must it be paid?

The Section 245(i) fee is $1,000, and is in addition to any other filing fees the INS and DOL charge. In most cases, this fee does not have to be paid when relatives or employers submit the visa petition or labor certification on or before April 30, 2001. Rather, it is usually due later, when people adjust their status and become permanent residents. Thus, the $1,000 fee usually needs to be paid at the time of filing the Form I-485A, which is submitted along with the standard application for adjustment of status (Form I-485).

9. Does the new Section 245(i) grant work authorization, protection from deportation, or travel permission?

NO! Section 245(i) only allows people who illegally entered the United States or are out of status for various reasons to adjust their status in the U.S. if they are otherwise eligible. It offers no other protections or rights.

Note: The article above may not contain current information.

See also…

Immigration Law Forum