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Little known facts about section 245(i)

By Atty. Paul Choi

Paul Choi is an immigration attorney practicing in Encino, California. As a public service, he will answer all questions regarding immigration and naturalization for free either by mail, email at pchoi@pchoilaw.com, on the phone, or in person or you may contact his administrator, Philip Abramowitz at 818 714-2226, or pabramowitz@pchoilaw.com.  The following is one such question and the answer by Mr. Choi.

Question: I entered the U.S. as a tourist in 1999 but my visa expired years ago. My father petitioned me for a greencard in late 2001 and the petition was approved.  The quota for the petition which was filed as a daughter of a permanent resident is current now. I went to see several immigration attorneys to ask if I can apply for adjustment of status and every one of them told me that I was not eligible because my petition was filed after the April, 2001 deadline under section 245(i).  I don’t want to go back to the Philippines  as the attorneys told me to do. What are my options?

Answer: For those who are not aware of section 245(i) of the Immigration and Nationality Act, it was the best law to come along since the amnesty legislation of the 1980’s.  Originally passed in 1997 and reactivated for a limited time in 2000, section 245(i) allows persons who would not otherwise be eligible to adjust status in the United States to do so provided a petition or labor certification was filed on their behalf prior to April 30, 2001.  Under Section 245(i) immigration violations like illegal entry, jumping ship, overstaying and working illegally are not bars to obtaining permanent residence.

In short, the law was a lifesaver for hundreds of thousands of persons who took advantage and filed a qualifying petition prior to the deadline.  What happened to 245(i)?  It was a temporary law and it expired in just a few short months after it passed.  Those who did not file by the April 30, 2001 deadline, were out of luck and there is no such law today to erase such a broad range of immigration violations.  People argue about legalization or amnesty but the best and fairest way to bring about immigration reform may be to just re-enact section 245(i). Bring it back and hundreds of thousands of qualified immigrants will be able to adjust here.

However, your question raises reoccurring phenomena; many so called immigration attorneys don’t know the law very well and people often get the wrong advice.  In your case, did any of the lawyers you visited ever ask you how your dad got his green card and when?  Why is this important?  If dad was petitioned by a brother or sister, or parent, or permanent resident spouse, or even by an employer through a labor certification and these petitions were filed before you turned 21, you are indeed eligible for the benefits of section 245(i)!

How can that be?  Section 245(i) states that you must be the beneficiary of a labor certification or petition filed before April 30, 2001.  This means that you could have been directly petitioned or that you were indirectly petitioned prior to April 30, 2001 by being the minor child or spouse of someone who was petitioned prior to April 30, 2001.  If dad was petitioned by an employer or relative, (other than a citizen spouse or son or daughter,) prior to April 30, 2001, and you were under 21 at the time, you are qualified under section 245(i)!

What, your prior attorneys did not catch this?  Not surprising as this is a little known trick to fully take advantage of section 245(i).  Now check how dad was petitioned?  If it checks out that he was truly petitioned by an employer for example before you turned 21, bingo, you can now file for permanent residence.  Congratulations.

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Atty Paul Choi will answer all questions regarding immigration, naturalization and deportation defense for FREE. Contact him at pchoi@pchoilaw.com or at 818 714-2226. He is located at 16000 Ventura Blvd, Ste. 1201, Encino, California 91436.

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