Cite as "AILA InfoNet Doc. No. 01041371 (posted Apr. 13, 2001)"
U.S. Department of Justice
Immigration and Naturalization Service
Office of the Executive Associate Commissioner
425 I Street, NW
Washington, DC 20536
April 6, 2001
ALL REGIONAL DIRECTORS
ALL SERVICE CENTER DIRECTORS
ALL DISTRICT DIRECTORS
ALL OFFICERS IN CHARGE
William R. Yates
Deputy Executive Associate Commissioner
Office of Field Operations
Immigration Services Division
Field Guidance for Adjustment of Status applications filed under section 245(i), as amended by the Legal Immigration
Family Equity Act Amendments of 2000.
On March 26, 2001, an interim
rule was published in the Federal Register (66 FR 16383) to amend the
regulations at 8 CFR 245.10 establishing eligibility for adjustment of status
under section 245(i) of the Immigration and Nationality Act (INA). This regulation implements some portions of
the Legal Immigration Family Equity Act Amendments of 2000 (the LIFE Act)
signed into law on December 21, 2000.
Certain provisions became effective on that date, including
re-authorization of section 245(i) of the INA.
This memorandum supplements the memorandum of
January 26, 2001 issued by the Office of Programs.
- New sunset date for aliens with current priority
dates and physical presence requirement.
The LIFE Amendments of 2000 (the LIFE Amendments) changed the sunset date of the
section from January 14, 1998, to April 30, 2001 and added a new requirement
that all aliens who seek to adjust on the basis of a visa petition or
application for labor certification filed after January 14, 1998, must have
been physically present in the United States on December 21, 2000. Visa petitions filed with the Attorney
General and applications for labor certification filed with the Department of
Labor on or before April 30, 2001 will serve to grandfather the alien
beneficiary(s) for use of section 245(i) of the INA when they file for
adjustment of status.
·Evidence of physical presence
on December 21, 2000
The memorandum of January 16, 2001 detailed the type of
evidence the Immigration and Naturalization Service (the Service) will consider
in determining whether the alien was physically present on December 21, 2000 as
required. Note: The physical presence requirement only applies to principal
applicants for adjustment of status under section 245(i) of the INA. Dependent spouses and children do not need
to demonstrate physical presence on December 21, 2000.
the Immigrant Visa Petition is “Approvable When Filed”
Not all immigrant visa petitions that are properly filed on
or before April 30, 2001 will serve to grandfather the alien beneficiary for
purposes of 245(i). The interim rule
interprets the language of Section 245(i) since it was amended in 1997 to also
require that the visa petition must have been “approvable when filed” to qualify the alien beneficiary for
grandfathering. “Approvable when filed”
is defined in the regulations to mean that on the date of filing, the immigrant
visa petition was properly filed, meritorious in fact, and non-frivolous.
Immigrant visa petitions may be filed initially without all
of the necessary information for the Service to adjudicate the petition. However, a visa petition will not qualify an
alien for grandfathering unless the Service is able to determine, based on the
available information, that the petition was approvable when filed.
The new regulation requires an immigrant visa
petition to be “properly filed” before or on April 30, 2001 for the purpose of
grandfathering. This means that the
immigrant visa petition must either be physically
received by the Service prior to the close of business on April 30, 2001,
or if mailed to the Service, postmarked
before or on April 30, 2001. It is
important that field offices either stamp the actual receipt date on the
immigrant visa petitions or retain evidence of the postmark with each
petition. In the case of an envelope
containing multiple petitions, evidence of the postmark must be attached to
Visa petitions which meet the
threshold filing requirements of 8 CFR 103.2(a) will not be rejected. However, petitions without the names of the
petitioner and beneficiary, the proper fee, and the signature of the petitioner
will not be accepted for filing.
Tracking of 245(i) Penalty Sum
The priority date of the underlying immigrant visa
petition upon which the Form I-485 is filed is a determining factor as to
whether Supplement A is filed under the “old” Section 245(i) provision or under
the Section 245(i) provisions included in the LIFE Act Amendments.
If the priority date of the immigrant visa petition
that serves as the basis for the adjustment of status application is on or
before January 14, 1998, then Supplement A is considered filed under the
"old" Section 245(i) provisions. Supplement A to Form I-485 filed under the
"old" provisions of Section 245(i) must be receipted and the $1000 penalty sum
deposited under the existing instructions (Attachment 1).
Life Act 245(i)
If the priority date is between January 15, 1998 and
April 30, 2001, inclusive, Supplement A is considered filed under the 245(i)
provisions in the LIFE Act Amendments.
The LIFE Act Amendments mandate that the penalty sum
be divided differently for accounting purposes than the penalty sum submitted
under the “old” Section 245(i). Until
registers are updated and CLAIMS 3 changes have been completed, Supplement A to
Form I-485 filed under the LIFE Act Amendments must be receipted and the $1000
penalty sum deposited as if it were filed under the “old” provisions. However, the office that deposits the
penalty sum under Section 245(i) of the LIFE Act Amendments must keep a
separate log (spreadsheet) of all LIFE Act Amendments 245(i) applications.
By the 5th
business day of each month, each District Office and Service Center shall
report to their assigned HQISD contact, the number of $1000 penalty sums
collected under the LIFE Act Amendments 245(i) provision in the preceding
month. EXCEL spreadsheets (Attachment
2) must be forwarded via E-mail to the appropriate point of contact listed
below. For further information
regarding the handling of 245(i) penalty sums or for an electronic copy of the
required spreadsheet: Service Centers
should contact Laura Carney of the Service Center Operations Division of ISD at
202-305-3676, and District Offices should contact Kathy Dominguez of the Field
Services Operations Division of ISD at 202-616-1050.
on April 30, 2001
There is no requirement that
District Offices remain open beyond normal operating hours on April 30,
2001. However, it is recommended that
offices follow the same procedures instituted for the last 245(i) sunset date,
January 14, 1998. The use of postmark
for a timely filing may impact the volume of applicants seeking to file in
person at District Offices on April 30, 2001. It is up to individual District Offices to determine what can be done to
best meet the anticipated response in their local communities. HQISD asked the Regional Offices to survey
District Offices as to their operating hours for the sunset date, and it
appears that most will remain open until midnight to accept in person
filings. It is important that District
Offices convey information to the public about extended office hours for April
The regulation and other LIFE Act related documents are on
the LIFE ACT Bulletin Board. In
addition, Service personnel may use the Intranet to send questions and comments
for consideration by the LIFE Act Project Team. Service personnel with questions should go through appropriate
supervisory channels. For questions
relating to operational procedures, contact Kathy Dominguez, HQISD via
e-mail. For policy questions relating
to section 245(i) adjustments, contact Michael Valverde at HQADN via e-mail.