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What is the new 245(i) Amendment?
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The new 245(i) Amendment allows some aliens
who are out of status, entered the U.S. without inspection,
or violated the terms of their non-immigrant visa to apply
for adjustment of status after their immigration petitions
are approved.
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Who is eligible to take advantage of
245(i)?
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To be eligible to take advantage of 245(i),
the alien must meet the following requirements:
- Physically present in the U.S. on December 21, 2000;
An immigration petition or a labor certification application
has been filed for the benefit of the alien on or before
April 30, 2001; and
- The immigration petition or the labor certification application
must be approvable at the time of filling. (this means that
the application is good on its face).
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What kind of benefits does an alien get
from 245(i)?
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245(i) will allow the alien to apply for
adjustment of status even if the alien entered the U.S. without
inspection, was out of status, or violated the terms of his
of her non-immigrant status. The alien still needs to meet
other requirements for adjustment of status to obtain a green
card. The 245(i) only lifts three of the bars in the adjustment
of status process.
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Who is not protected by 245(i)?
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245(i) does not protect an alien from removal
proceeding and does not grant other benefits such as employment
authorization or advance parole.
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Does 245(i) protect aliens who have been
ordered to be removed?
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No. If a person has been ordered to be removed
from the U.S., he or she cannot use 245(i) to lift this bar
to adjustment of status. Also, if the alien is ordered to
be removed in the future, the 245(i) does not protect the
alien from removal.
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Does 245(i) exempt the J-1 holder's home
residency requirement?
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No. The 245(i) does not grant a waiver to the
J-1 holder's two year residency requirement. An alien
who is subject to the two-year home residency rule still needs
to obtain a waiver or fulfill the requirement before applying
for adjustment of status.
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What are the benefits of 245(i) to those
who are currently in status?
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For those who are in status and who were physically
present in the U.S. on Dec. 21, 2000, if they are beneficiaries
of immigration petitions or labor certification applications
filed on or before April 30, 2001, they will be eligible to
take advantage of 245(i) even if they fall out of status in
the future.
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What are the three and ten year bars,
and why should they be of concern?
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Before the enactment of 245(i), aliens who are out of status needed to return to their home countries and complete the process for an immigrant visa at the U.S. consulate. However, if aliens found to be out of status in the U.S. for more than 180 days would be barred from reentering the U.S. for at least 3 years; aliens found to be out of status in the U.S. for more than 360 days would be barred from reentering the U.S. for at least 10 years. Under Section 245(i), an eligible alien 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 since the 245(i) does not lift the three year/ten year bars. |
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What is the penalty fee and when must
it be paid?
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The Section 245(i) penalty fee is $1,000, and is in addition to any other filing fees that the USCIS charges. 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 the alien applies for adjustment of status to become a permanent resident. Thus, the $1,000 fee 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). |
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I came into the US legally with a B-1 visa and am out of status now. I just married a US citizen. Moreover, I was present in the US on December 21, 2000. May I use 245(i) to apply for a Green Card? |
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Yes, you may, but you do not need to. Even without 245(i), the fact that you are out of status does not prevent you from applying for adjustment of status. If you use 245(i), you have to pay a $1,000 penalty. If you do not 245(i), you do not need to pay the penalty. For the purposes of getting a Green Card, there is no difference whether you use 245(i) or not. |
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