INS on 245(i) Handling

Subject: Processing of Section 245(i) applications submitted under September 19, 1997, policy memorandum HQOPS 70/23.1-P prior to October 1,1997

Date: October 6, 1997

To: Regional Directors
District Directors (including Foreign)
Officers in Charge (including Foreign)
Service Center Directors
Administrative Center Directors
Training facilities: Glynco, GA and Artesia, NM

From: Office of Programs
Office of Field Operations

A policy memorandum HQ 70/23.1-P, 96 ACT.003 issued by the Office of Programs on October 1, 1997, advised the field that Congress’ continuing resolution (H.J. Res. 94) extended the provisions of section 245(i) of the Immigration and Nationality Act (the "Act") to October 23, 1997. The October 1, 1997, memorandum instructed local Service offices to resume normal filing procedures and to accept additional applications under section 245(i), only if they meet the filing requirements for current Service regulations. The present memorandum provides instructions regarding the handling of applications under section 245(i), received by Service offices from September 19 through 30, 1997, which were not properly filed under existing Service regulations.

Service policy requires review of incoming adjustment applications prior to processing of the filing fee, in order to determine whether they are "properly filed" (i.e. , have the applicant’s signature, correct fee, and immediate immigrant visa availability, if required). This procedure is distinct from an improper rejection, i.e., refusal to process because of an assessment that the application would be denied for reasons other than failure to meet the threshold filing requirements. When a Service office has inadvertently processed the filing fee for an application which did not meet the requirements for proper filing, e.g., as when a required immigrant visa is not immediately available and cannot become available by the approval of any pending visa petition, OI 245.2(a) prescribes that the application will not be formally denied; rather, the applicant is notified of the reason why the application is ineligible for filing, and is advised that a refund request is being processed. On the other hand, if the fee was processed for an adjustment application (including a section 245(i) case) which was properly filed but still lacks eligibility for admission to permanent residence, the application is normally adjudicated for denial with no refund of the filing fee.

A September 19, 1997, policy memorandum HQOPS 70/23.1-P, entitled "Section 245(i) Sunset," instructed local offices to "accept all applications" delivered [to them through] September 30" and "not [to] pre- screen, or turn away any applicant who believes that he/she has a claim of eligibility under section 245(i)" during that time. The purpose of that policy was to prevent irremediable harm to any eligible immigrant whose application might be inadvertently rejected while termination of section 245(i) was imminent. It is expected that the local offices will complete the adjudication of those applications which were in fact properly filed under Service regulations. However, the local offices must now take appropriate action on those section 245(i) applications, submitted from September 19 through 30, which did not meet the requirements for proper filing. Swift and careful implementation of these instructions is essential in order to meet the Service’s obligations and to afford applicants the maximum opportunity to correct any deficiencies in their cases before the approaching sunset date for benefits under section 245(i).

Section 245(i) Applications not Properly Filed, for which the Filing Fee has not been Processed

All section 245(i) adjustment applications on which no action has yet been taken to process the filing fee must be reviewed as soon as possible, to determine whether they were properly filed. The basic requirements for proper filing, as detailed in 8 CFR 103.2(a), 204, and 245.2(a)(2)(i) and 245.10 include proper applicant signature, fee payment, and immigrant visa availability at the time of filing (if applicable). If it is determined that an application meets these basic filing requirements, the fee must be taken immediately, and the I-485 processed for adjudication.

If an application does not meet the basic requirements for proper filing, the office that received it should not process the filing fee. Such applications include those which:

remitted no fee, or an incorrect fee amount;

lack the required signature of the applicant; or

lack immediate availability of an immigrant visa, if such availability is required for the type of I-485 application being filed.

In such a case, OI 245.2(a) prescribes that the application and the fee must be returned immediately to the applicant, with an explanation of the reasons(s) for the rejection. However, in view of the previous section 245(i) sunset instructions and the limited opportunity for applicants to make a timely correction of these defects, an exception to this policy will be instituted for certain applications submitted under section 245(i) from September 19 through 30, 1997, as follows:

An application which, at the time of submission, would have been improperly filed solely because of the unavailability of a required preference visa number, which has become available on the October 1997 Visa Bulletin, should be recorded as filed in October when the fee processing determination is made, and placed in processing for adjudication.

An application which was improperly filed because of the unavailability of a required preference visa which remains unavailable on the October 1997 Visa Bulletin, should be returned to the applicant, together with the attached fee and a written explanation of the reason for the rejection.

An application which was not properly filed solely because of the lack of a proper signature or correct fee will be returned, together with any fee submitted, and a written explanation of the reason for the rejection and notice of necessity of filing it properly before the new sunset deadline for section 245(i). A copy of the rejection notice will be retained in the office’s files for future reference.

Section 245(i) Applications not Properly Filed, for which the Filing Fee has been Processed

Since the September 19 "Section 245(i) Sunset" memorandum instructed local offices to "accept all applications" and "not [to] pre-screen, or turn away applicant who believes that he/she has a claim of eligibility under section 245(i)" prior to October 1, it is probable that prior to the receipt of this memorandum, fees have been processed for some applications which were not properly filed. Because of the exceptional circumstances discussed in the previous section, local Service offices should immediately (1) review all fee processed section 245(i) applications received from September 19 through September 30, 1997, (2) identify any which did not meet the requirements for proper filing, and (3) apply to them the following procedures:

An application which is found to have been improperly filed solely because of the unavailability of a required immigrant visa number, which as become available on the October 1997 Visa Bulletin, should be recorded as filed in October when the case review took place, and retained for completion of adjudication.

An application which is found to have been improperly filed solely because of the unavailability of a required immigrant visa number which remains unavailable on the October 1997 Visa Bulletin, should be retained by the office. A written notice will be sent to advise the applicant regarding the reason for the rejection and the initiation of a request for refund of the filing fee. After ensuring the validity of the applicant’s fee check previously deposited, the Form G-266, Refund of Immigration and Naturalization Fees, should be prepared and sent to the Administrative Center having jurisdiction over the requesting office.

An application which is found to have been improperly filed solely because of the lack of a proper signature or the correct fee should be returned immediately with a written explanation of the reason for the rejection and a notice regarding the initiation of a refund request and the importance of properly filing the application, with all the required fees, prior to the new section 245(i) sunset date. The refund request will be processed as provided above. A copy of the rejection notice will be retained in the office’s files for future reference.

Special Filing Procedures for Section 245(i) Cases Submitted by Self- Petitioning Battered Aliens

The special filing instructions regarding section 245(i) cases submitted by self-petitioning battered aliens that were set forth in the September 22 memorandum, HQ 70/23.1-P, will be extended through October 23, 1997. During this period, any battered alien who has properly filed an I- 360 self-petition and for whom a visa number is available may file an I- 485, with Supplement A and the $1,000 surcharge, directly with the Vermont Service Center at the following address:

INS Vermont Service Center
Attn. Family Services Product Line - 245(i) cases
75 Lower Weldon Street
St. Albans, VT 05479-0001

These applications should be accompanied by evidence of the filing of the Form I-360, which may be either a Form I-797 Notice of Action, a copy of the Form I-360 accompanied by a registered mail return receipt, or other documentation evidencing proper filing of an I-360. Applicants may filed the I-360 and I-485 concurrently with the Vermont Service Center, but all filings must be accompanied by the appropriate fees in order to be considered properly filed. Any alien who files a section 245(i) adjustment application prior to adjudication of the I-360 assumes the risk that all sums paid will be lost if the I-360 is ultimately denied; no refunds of filing fees or surcharges will be issued.

Filing of the section 245(i) adjustment application by a self- petitioning battered alien at a local INS office continues to be appropriate if the applicant presents evidence that the I-360 has been approved and that a visa is available.

Section 245(i) Closeout Procedures

The October 1 policy memorandum advised the field that if section 245(i) is not extended beyond the revised sunset date of October 23, 1997, local offices are to apply the procedures set forth in the recent instructions for the previous September 30 sunset date, during the last two days in which section 245(i) remain in force. However, in the event that those procedures are implemented, local offices are instructed not to process the application fee until a determination has been made that the application is properly filed; thereby they will avoid a greater administrative burden and inconvenience to the applicant.

Paul Virtue

Acting Executive Associate Commissioner

Programs

Mark Reed

Acting Executive Associate Commissioner

Field Operations