Information
on § 245(i) Provisions In New Immigration Bill
December 18, 2000
The Omnibus Consolidated Appropriations Act of 2001, which Congress passed on December 15, contains several immigration-related provisions including the reinstatement of Section 245(i) until April 30, 2001.
In order to take advantage of the 245(i) grand fathering, individuals must have an immigrant visa petition or a labor certification application on file with the Immigration Service or Department of Labor by April 30, 2001.
This means that you must have either an employer or a relative submit an application for labor certification or a visa petition on your behalf by April 30, 2001. It is not necessary that the Labor Department or the INS approve your application or petition by that date, only that it be filed. Also, even if the petition or application is never approved, ultimately denied, or withdrawn, as long as it was "approvable when filed" you are entitled to the benefits of §245(i). However, applications or petitions that are deficient because they were submitted without the proper fee, or because they were fraudulent, or without any basis in law or fact, are not considered to be "approvable when filed" and confer no benefits under §245(i).
Spouses and children of the principal applicant are considered "derivative beneficiaries" and they would also be grand fathered in under the new law. This applies even for children who turn 21, or for divorced spouses.
Another good feature is that there is no requirement that the person adjust status in the same preference category that they were petitioned for. In addition, once you qualify for benefits under §245(i), your eligibility never expires.
Individuals wishing to file under the new grandfather date also must show that they are physically present in the United States on the day the bill is signed by the President. (The physical presence requirement does not apply to 245(i) filings for individuals with pre-January 14, 1998 priority dates.) There is no requirement that you be in the US lawfully, only that you be physically present in the US when the law is signed.
As of now, we do not have any information on how the provisions will be implemented. As memoranda are issued, and regulations proposed, we will post them immediately to this web site.
