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245(i) for Dummies
by Curtis Pierce

April 30, 2001 is the deadline to apply for immigration benefits under 245(i). This article shall try to explain the benefits of 245(i) in simple terms.

WHAT IS 245(i)?

245(i) is designed to help people who are in the United States illegally. This includes people who entered the United States illegally as well as people who entered with a visa but remained in the United States after their visa expired.

In order to qualify, an employer or close family relative must file a petition for you by April 30, 2001. Also, you had to be physically present in the United States on December 21, 2000. When are ready to apply directly for a green card (adjustment of status), you will have to pay a fine of $1,000.

Immigration law 245(i) allows people to apply for a green card without leaving the United States. This is important because without 245(i), many people who are eligible for a green card would have to travel to the American Consulate in their country to apply for a green card.

WHAT IS THE PROBLEM OF HAVING TO TRAVEL TO THE AMERICAN CONSULATE IN MY COUNTRY TO OBTAIN A GREEN CARD?

The problem is this. Let's say you have been living in the United States without the permission of the Immigration Service for more than six months but less than one year. Let's say you leave. You are not allowed to re-enter the United States for 3 years. Let's say you have been residing in the United States without the permission of the Immigration Service for more than one year. If you leave, you are not allowed to re-enter the United States for 10 years.

This is called the 3 year and 10 year bar. If your spouse or parent has a green card or is a citizen, you might have a way to avoid being penalized by the 3 and 10 year bar. But it is not automatic. Because even if your spouse is a resident (or citizen) or your parent is a resident (or citizen), this does not necessarily mean that you will have a way around the 3 and 10 year bar. You might still not be allowed to re-enter the United States for several years if you have been living here illegally for more than six months.

Also, leaving the United States and waiting for the Consulate to grant you an immigrant visa might be very expensive, inconvenient and time consuming.

DOES THE 245(i) LAW HELP ME IF I HAVE BEEN LIVING IN THE UNITED STATES WITHOUT THE PERMISSION OF THE IMMIGRATION SERVICE?

Yes. 245(i) allows you to immigrate (get a green card) without leaving the United States. As explained above, if you have been living in the United States illegally, and you leave, you might have to wait 10 years before being allowed to come back. The 245(i) law solves this problem.

IS THE 245(i) LAW AN AMNESTY?

No. Many people are confused and believe that 245(i) is amnesty. It is not. If someone tells you that it is, you should not trust them. You should seek out a reputable and experienced immigration attorney.

WILL THE 245(i) LAW ALLOW ME TO GET A WORK PERMIT?

Only when you get to the point where you are ready to apply directly for a green card. When someone is living in America and applies for a green card while remaining in the United States, the process is called "Adjustment of Status." If you are eligible to apply for adjustment of status, that means that you are ready to apply directly for a green card. At this moment, you can also apply for a work permit.

WILL THE 245(i) LAW ALLOW ME TO REMAIN LAWFULLY IN THE UNITED STATES?

Again, only when you get to the point where you can apply directly for the green card (adjustment of status). For example, getting a green card through your job is usually a 3 step process. The first step is applying for labor certification, form ETA 750. The second step is applying for an immigrant visa, form I-140. The third and final step is applying for the actual green card, form I-485. That step is also known as applying for adjustment of status. When you get to that third step, you can apply for a work permit and you are allowed to stay legally in the United States. Not until then.

I UNDERSTAND...SORT OF. BUT NOT TOTALLY. (To tell the truth.) HOW DO I QUALIFY FOR 245(i)?

Good question. First of all, you need to have been in the United States on December 21, 2000. Also, you need a close family member or an employer to file a petition on your behalf by April 30, 2001. In other words, you need someone to sponsor you.

If it is a family member, they should be a close relative (spouse, child over 21, brother, or parent.) If it is your brother or sister that is sponsoring you, he or she must be a citizen. If it is your spouse, she can be a citizen or green card holder. Your parent could be a green card holder or a citizen. (But if your parent is a green card holder, you must be unmarried.) When your relative is a citizen, the process is almost always quicker. If it is your employer, you will be probably be applying for a labor certification. In the labor certification process, you need to show that there are no qualified Americans who are available to do your job.

MY ATTORNEY SAYS THAT 245(i) IS PARTICULARLY IMPORTANT FOR THE LATINO COMMUNITY. IS THIS TRUE?

Yes. Here is why. Many people from Mexico and Central America enter the United States illegally, without a visa. If a person from Mexico enters the United States illegally, and then marries an American citizen, this person cannot adjust his status (get a green card while staying in America) without 245(i).

And as explained above, if this person has been living in the United States illegally for a long time and then leaves, he or she might have to wait ten years before being allowed to come back in.

People who enter the United States with a visa and marry an American citizen can apply for adjustment of status even without 245(i). Most people from countries other than Latin America enter with a visa. Because of this, they are able to get a green card without leaving the United States by marrying a U.S. citizen. People from Latin America who enter the United States without a visa and then marry an American Citizen need the 245(i) law to adjust status (get a green card without leaving the United States).

WHAT IS THIS "GRANDFATHER CLAUSE" MY LAWYER KEEPS TALKING ABOUT? DOES GRAMPA GET A GREEN CARD TOO? (He would have liked that.)

Not exactly. The "grandfather clause" allows your spouse and children to benefit from 245(i). It is a very important benefit because it allows your spouse and children to adjust their status (get a green card while remaining in America) on their own if for some reason they are not able to get a green card with you. It is a benefit for life. It not only benefits your spouse and children for life. But also yourself.

REALLY? THE "GRANDFATHER CLAUSE" OF 245(i) BENEFITS MY WIFE AND CHILDREN FOR LIFE? HOW?

Let's say you are from Mexico. You enter the United States illegally with your wife Sonia and three children Carlos, Maria, and Ana. Carlos is nineteen, Maria is eighteen, and Ana is eight years old. Your children were all born in Mexico. Suppose you have a brother named Angel who is an American citizen.

Your brother Angel files a petition (form I-130) for you before the deadline of April 30, 2001. This is the first step toward getting a green card. The second step will be applying for the actual green card. Before you get to the second step, you will have to wait until your "priority date" is current. In other words, you will have to wait your turn. This will probably take several years.

Let's say you have to wait eleven years. In this case, your wife Sonia and daughter Ana will be able to immigrate (get a green card) with you. But your children Carlos and Maria will not because they will be over 21 years of age.

But your brother's petition still helps Carlos and Maria. Here is how. Let's say your brother files the petition for you before April 30, 2001. You begin waiting the eleven years to immigrate. Sometime after April 30, 2001, your daughter Maria marries an American citizen John. (This marriage can take place in 2002 or 2022.) Maria can apply for adjustment of status (getting a green card without leaving the United States) thanks to the petition filed this year (by April 30) by your brother Angel. That is because of the "grandfather clause. "

WAIT A MINUTE. WHAT IF MY BROTHER ANGEL DOES NOT FILE A PETITION FOR ME? WHAT IF NO ONE ELSE FILES A PETITION FOR ME EITHER BY APRIL 30, 2001 AND MY DAUGHTER STILL MARRIES AN AMERICAN CITIZEN AFTER APRIL 30, 2001. IS THERE A PROBLEM?

Yes. Without the petition filed by your brother, your daughter under the current law will not be able to adjust her status (get a green card while remaining in America).

MY SON CARLOS MIGHT NOT MARRY AN AMERICAN CITIZEN. CAN THE GRANDFATHER CLAUSE HELP HIM IN ANY OTHER WAYS?

Yes, indeed. Let's say he gets a job offer in one year. If his employer is willing to file a petition for him for a labor certification, he may be able to adjust his status (get a green card while staying in America) through his job. Even if his position is "unskilled," he will probably get a green card in less than eleven years. If the position is "skilled" and he has the necessary experience, the entire process could possibly be completed within two years.

Without the petition filed by your brother (his Uncle) Angel by April 30, 2001 for you, he would not be able to adjust his status (immigrate without leaving America).

WHAT ABOUT ME AND MY WIFE? WILL WE HAVE TO WAIT ELEVEN YEARS TO IMMIGRATE?

Not necessarily. You also benefit from the Grandfather Clause. If you or your wife find a job offer sometime after April 30, 2001, you can also file for a Labor Certification and eventually adjustment of status (immigrating without leaving the United States). Whether the position is skilled or unskilled, the process will almost surely be faster than eleven years. Also, if your daughter Maria marries a U.S. Citizen, she can become a Citizen herself in 3 years. At that point, she could file a petition to immigrate you as "immediate relative." You could at that point file directly for a green card (adjustment of status.) Without your brother's petition filed by April 30, 2001, these avenue will not be open to you.

IS THERE A FEE?

When you get to the point of applying directly for the green card (adjustment of status), you must pay a penalty of $1,000.

PLEASE NOTE: THE ABOVE INFORMATION IS HIGHLY GENERAL AND SHOULD NOT BE CONSTRUED AS LEGAL ADVICE. FOR SPECIFIC INFORMATION PERTAINING TO YOUR CASE, YOU SHOULD CONSULT AN EXPERIENCED IMMIGRATION ATTORNEY.


About The Author

Curtis Pierce has been a member of the California Bar since 1986. From 1992-1995, he taught Constitutional Law at the Sorbonne (University of Paris). He received his Bachelor of Arts degree with a Major in Political Science from U.C.L.A, where he graduated Cum Laude. He obtained his Juris Doctor from Loyola Law School.

He is currently an active member of the Immigration Section of the Los Angeles County Bar Association, the Immigration Section of the Mexican American Bar Association, and the American Immigration Lawyer's Association.

Mr. Pierce is also admitted to practice before the United States Court Of Appeals For The Ninth Circuit, where he has successfully argued many cases, including Lopez v. INS, 184 F. 3d 1097 (9th Cir. 1999).

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