Many persons applied for immigration benefits in April 2001, to meet the deadline under 245-i. Employers and family members filed petitions and labor certifications in favor of aliens to obtain permanent residency in the U.S. The law, which never came back after 2001, fell victim to post 9/11 anti-alien frenzy.
The history of the administration of the 245-i law is a series of inconsistencies The American Immigration Lawyers Association has 245-i listed as a Featured Topic, and for good reason, with approximately 40 documents listed and categorized with sundrytitles as Agency Memos Cables and Letters, AILA Publications, AILA / AIC Announcements, Amicus Briefs, Analyses and Summaries, BIA / AG Decisions, Circuit Courts, Congressional Updates, Enacted Legislation, FR Regulations and Notices, Government News, Liaison Activity, Memo and Regulatory Comments, Practice Assistance, Press Releases and Statements, Proposed Legislation, Reports and Studies, and Testimony and Correspondence.
Some of these official documents, especially more recent ones, are contradictory of earlier documents, and serve only to worsen the plight of those would would seek benefits of adjustment of status by claiming grandfathering under 245-i.
245-i began as a way for undocumented aliens who were subject to a 10 year bar because of their unlawful presence to apply for residency, either by family or employment based applications or petitions, and pay a fine of $1,000.00 which would permit them to apply for adjustment of status.
Since April 1, 1997, undocumented persons, whose authorized status expired cannot apply for residency in the US through adjustment of status, but for a few exceptions involving close relatives of United States citizens and certain other immigrants (in small numbers) such as abused spouses, government informants, victims of trafficking and others, for whom unauthorized status (also known as unlawful presence) is waived.
245-i seemed very straightforward when it was first legislated. Applicants had to prove that petitions and applications for alien labor certification filed on their behalf were not frivolous and were properly filed no later than April 30, 2001. Except for applicants who applied before January 14, 2008 (when the window of opportunity for the first 245-i law ended before being renewed in 2000), applicants also had to prove that the principal applicant was in the US (physically present) on December 21st, 2001. Large numbers of persons paid filing fees and legal counsel to file petitions or apply labor certifications before the deadline.
Because no regulations were ever issued, the legacy INS, and then the USCIS (DHS), issued policy "guidance" in the form of opinions as to the principal grandfathered alien and family members. As Immigration Lawyers know, under the Chevron doctrine, "policy guidance" is given great deference in the federal courts, even though the guidance does not rise to the legitimacy of a properly issued regulation.
Unanswered questions about 245-i abound: Can the principal person acquire a spouse or child after being grandfathered? Can the principal person or derivative spouse or child apply after 2001 with a new petition or application? Could a 245-i protected person leave the US and return or would that person be subject to exclusion? Can a principal alien "port" under AC-21 to a new employer, and if so, what would be the effect of a withdrawal and/or denial of the original petition on the alien's status after porting? Can aliens port to their own companies? What kind of occupations or job offers are similar to the original for purposes of porting?
Although 245-i was a bonanza for undocumented aliens, many applications filed before April 30th 2001 were necessarily prepared quickly to comply with the deadline (the window of opportunity was only open from December 21, 2000, until April 30, 2001).
The problem was caused in part by the fact that the window of opportunity was a short period of time and by the fact that many applications were poorly prepared, with few competent attorneys available to give guidance, the petitions often contained errors or were incomplete.
As a result, many applications and petitions were prepared hurriedly, with minimal documentation. Years later, the Service may use this to try to disqualify persons from 245-i eligibility.
For example, in a case that came to my attention recently, the alien applied for religious worker status on April 30, 2001 through an I-360 filed by a church. The I-360 was ultimately denied, although heavily documented, in 2002, because the church was unable to provide detailed documentation about persons working in the church due to concerns about privacy interests.
At some later date, the alien applied for certification through PERM to work for an employer in a non-religious occupation. Both the PERM and the I-140 petition were approved.
The alien then sought to adjust status to work for the non-religious employer based on 245-i grandfathering from the I-360.
The adjustment of status was denied by the USCIS, because it claimed that the I-360 did not grandfather the alien. The USCIS argued that since the petition was ultimately denied, the alien could not claim that the I-360 was properly filed.
Of course, the term "properly filed" is a term of art. In the case of a grandfathered alien, unless the application or petition were fraudulent, as long as it was signed and accompanied by the filing fee it should be considered approvable when filed.
Some decisions have held that if the Employer did not have the funds available to pay the alien, the petition could not have been approved. However, the issue of proving funds depends on many financial details which are not easily obtained by petitioners, and the Service has not adopted a real world approach to determining ability to pay wages.
Interestingly, if the employer had filed an application for alien labor certification in 2001, instead of an I-360, the application might have been approved, because the Department of Labor would have processed the application for labor certification, not the USCIS, and the inquiry would have concentrated on the availability of US workers and not on the Employer's structure. The job, to work in a religious capacity for a Brazilian congregation, would not have been likely to attract qualified US workers, and the application for labor certification would have been approved.
Unfortunately, many employers, including churches, do not realize that I-360's are an option, not a requirement, and both religious and lay positions may be certified through the Department of Labor for churches by filing an application for alien labor certification. An approved labor certification should be acceptable evidence that the alien is 245-i eligible.
The requirements for I-360's stiffened in 2008, when regulations were issued that require on-site visits and substantial scrutiny to prevent fraud. These visits may have a chilling effect on some churches which interpret the visits as intrusive on their privacy. While the on-site visits are only supposed to be for information gathering, church elders report that they are usually subjected to questioning without having an attorney present, and often they receive admonitions or advice that is inaccurate and unauthorized as part of the purpose of the visit.
Current interpretations of 245-i by the government have contradicted previous guidance regarding eligible family members and spouses. The purpose of laws should be to provide stable, dependable standards upon which citizens may rely, and not to confuse stakeholders with constantly changing and arbitrary interpretations and decisions.
The question of I-360 v. PERM and I-140 requires a thoughtful analysis of the employer and alien's qualifications, and a balance of the advantages and disadvantages of each kind of application.
For 245-i applicants, who applied more than 10 years ago, it is too late to make this decision, but an in depth understanding of I-360 petitions, and the history of 245-i, is important to preserve the right of many aliens to appliy for adjustment of status as grandfathered aliens.
Joel Stewart works exclusively in the area of immigration law. Joel Stewart has joined the Immigration Practice Group of the law firm of Fowler White Boggs as Of Counsel in the Firm's Fort Lauderdale office. Joel Stewart is the editor and author of THE PERM BOOK. He is Past President of the South Florida Chapter of the American Immigration Lawyers Association (AILA) and is a nationally recognized authority on employment-based immigration matters and a popular speaker at immigration seminars for national and local bar associations throughout the United States. Mr. Stewart has been writing the BALCA Case Summaries for AILA and Immigration Law Today since 1987 and authors official AILA articles and publications such as the Visa Processing Guide for Procedures at U.S. Consulates and Embassies in Brazil and Portugal. Mr. Stewart writes weekly newspaper columns for the Brazilian Times and the Brazilian Paper and presents a weekly radio program in Portuguese on Radio Brazil.