INS on Amendment and Extension of 245(i)

Date: November 28, 1997

Subject: Amendment and extension of Immigration and Nationality Act Section 245(i); amendment of section 245(c) and addition of new section 245(k) for benefit of certain employment-based applicants

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

From: Office of Programs

On November 26, 1997, the President signed into law the Departments of Commerce, Justice, and State, the Judiciary, and Related Agencies Appropriations Act (H.R. 2267). Section 111 of that law extends the provisions of section 245(i) of the Immigration and Nationality Act (the Act) to any alien (including the spouse or child of the principal alien) who becomes the beneficiary of an immigrant visa petition which was filed with the Attorney General or an application for a labor certification which was filed in accordance with the regulations of the Secretary of Labor not later than January 14, 1998. The new law also amends section 245(c) of the Act and adds a new section 245(k) to allow beneficiaries of certain approved employment-based petitions who violated the terms and conditions of their status subsequent to lawful admission to apply, under specified conditions, for adjustment of their status under section 245(a). The attachment of this memorandum provides the actual language of these referenced amendments to section 245 of the Act.

Amendment and extension of section 245(i) of the Act

Effective, November 26, 1997, Section 111(a) of H.R. 2267 amends section 245(i) of the Act to allow only certain aliens to continue to apply for adjustment under section 245(i). Under section 111(a), persons eligible for the benefits of the amended section 245(i) of the Act may continue to file I-485 applications with the I-485 Supplement A and section 245(i) surcharge. Such applications must meet the filing requirements of current Service regulations, with the exceptions discussed below.

Under the amended section 245(i), aliens who do not meet the adjustment requirements of section 245(a) are eligible to apply for adjustment of status only if they are beneficiaries of a visa petition filed with the Attorney General under section 204 or a labor certification which was filed pursuant to Department of Labor regulations. Aliens ineligible to apply for adjustment under section 245(a) who are eligible to receive an immigrant visa that is not based on a petition filed with the Attorney General (e.g., Diversity Visa applicants) are no longer eligible for benefits under section 245(i) and may only seek an immigrant visa abroad.

The new law provides that beneficiaries of a petition for classification under section 204 of the Act that was filed with the Attorney General on or before January 14, 1998, may continue to apply for adjustment of status under section 245(i) after that date. Beneficiaries of an employment-based petition filed after January 14, 1998, remain eligible to apply under section 245(i), provided that the basis of that petition is a labor certification filed on or before January 14, 1998. Aliens who timely filed a section 245(i) application under the old law, if otherwise eligible, may have their status adjusted in accordance with existing regulations.

In the case of an employment-based Form I-485 application submitted without a section 245(i) Supplement A by an alien who is in an unlawful status, the receiving office should not reject the application until it has reviewed it in light of another new provision of law, section 245(k) of the Act, discussed below.

Removal of section 245(c) ineligibility for certain employment-based adjustment applicants

Section 111(c) of H.R. 2267 adds a new subsection (k) to section 245 of the Act, by which certain beneficiaries of employment-based petitions approved under sections 203(b)(1), (2), or (3), or section 203(b)(4) in the case of special immigrant religious workers described under section 101(a)(27)(C), are exempted from the ineligibility grounds of subsections 245(c)(2), (7), or (8). Such aliens who are present on the basis of a lawful admission to the Untied States and who, subsequent to such lawful admission, have violated the terms and conditions of their status for a period of not more than 180 days may, if otherwise eligible to apply for adjustment of status, now apply for adjustment under section 245(a) of the Act. Since employment-based adjustment applicants who meet these criteria are not subject to section 245(i), the application and surcharge requirements of section 245(i) no longer apply to them.

The new section 245(k) of the Act is a permanent provision. The benefit of section 245(k) of the Act is therefore available indefinitely to all employment-based adjustment applicants who meet the criteria of that provision. However, employment-based applicants who are ineligible to adjust status under section 245(a) on some other ground (such as having entered the United States without inspection) may apply for adjustment of status only if they are beneficiaries of a visa petition or labor certification filed prior to January 15, 1998 (i.e., under the amended section 245(i)).

The Service will be publishing appropriate regulatory changes regarding the statutory amendments discussed above. This memorandum has the concurrence of the Office of Field Operations.

Paul Virtue

Acting Executive Associate Commissioner

Attachment

Attachment: Selected H.R. 2267 amendments to section 245 of the Immigration and Nationality Act

Section 111(a) of H.R. 2267 amends section 245(i) of the Act to make the benefits of section 245(i)(1) available to:

an alien physically present in the United States -

(A) who -

(i) entered the United States without inspection; or

(ii) is within one of the classes enumerated in subsection

(c) of this section; and

(B) who is the beneficiary (including a spouse or child of the principal alien, if eligible to receive a visa under 203(d)) of -

(i) a petition for classification under section 204 that was filed with the Attorney General on or before January 14, 1998; or

(ii) an application for a labor certification under section 212(a)(5)(A) that was filed pursuant to the regulations of the Secretary of Labor on or before such date;

Section 111(c) of H.R. 2267 amends section 245(c) of the Act by inserting the phrase "subject to subsection (k)," at the beginning of subsection 245(c)(2), and by adding a new subsection 245(k), to read as follows:

(k) An alien who is eligible to receive an immigrant visa under paragraph (1), (2), or (3) of section 203(b) (or, in the case of an alien described in section 101(a)(27)(C), under section 203(b)(4)) may adjust status pursuant to subsection (a) and notwithstanding subsection (c)(2), (c)(7), and (c)(8), if -

(1) the alien, on the date of filing an application for adjustment of status, is present in the United States pursuant to a lawful admission;

(2) the alien, subsequent to such lawful admission has not, for an aggregate period exceeding 180 days -

(A) failed to maintain, continuously, a lawful status;

(B) engaged in unauthorized employment; or

(C) otherwise violated the terms and conditions of the alien’s admission.