Federal Agencies, Agency Memos & Announcements

INS Procedures on 245(i) Sunset

1/9/97 AILA Doc. No. 97011280. Adjustment of Status

Subject: Special procedures for the sunset of amended section 245(i) of the Immigration and Nationality Act

Date: January 9, 1997

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 Field Operations

This memorandum summarizes Service policy, and provides implementation instructions regarding the handling of applications and petitions prior to and after the approaching sunset date of the amended section 245(i) on January 14, 1998. A previous policy memorandum HQ 70/23.1-P dated November 28, 1997 discussed the amendment of section 245(i) of the Immigration and Nationality Act (the "Act") by Section 111 of the Public Law 105- 119 (The Department of Commerce, Justice, and State, the Judiciary, and Related Agencies Appropriations Act of 1997), signed into law on November 26, 1997. A transcript of the portions of section 245 which were amended by Pub. L. 105-119 is again attached for reference.

1. Special District Office and Service Center procedures for handling applications and petitions received on or before January 14, 1998

A. The special procedures described in the following 1 bullet item apply on January 14, 1998 only:

District Offices in the United States and Service Centers are directed to extend their business hours, or make other provisions to accept applications and petitions under these sunset procedures, through midnight in accordance with arrangements discussed in the Office of Field Operations policy memoranda HQOPS 70/23.1P dated September 19 and 29, 1997.

B. The special filing procedures described in the following 3 bullet items apply during January 12, 13, and 14, 1998:

District Offices and Service Centers will follow previous section 245(i) sunset procedures listed in the aforementioned HQOPS policy memoranda of September 19 and 29, 1997, except that the filing deadline for these special procedures in now adjusted to January 14, 1998. In accordance with that policy, I-485 applications submitted under section 245(i) may not be rejected prior to January 15, 1998, as long as they bear the required fee and the applicant’s signature.
Visa petitions which meet the threshold filing requirements of 8 CFR Section 103.2(a)(7)(i) and (ii) may not be rejected prior to January 15, 1998. In order to allow the maximum opportunity for timely receipt of visa petitions by the Service, petitioners will be permitted to submit their visa petitions either to a District Office or to a Service Center prior to the sunset date. Visa petitions submitted to a District Office on or before January 14, 1998 will be bundled and forwarded with their fees to the appropriate Service Center, as provided in the referenced policy memoranda.
In order to allow the maximum opportunity for timely receipt of applications and petitions by the Service under these special section 245(i) sunset procedures, applicants and petitioners will be permitted to submit their application or petition to any District, Sub-office or Service Center in the United States prior to the sunset date. As soon as practicable after January 14, 1998, all offices shall forward such applications and petitions, with their attached fees, to the appropriate office for processing and adjudication. The procedures to be followed are described in the above referenced policy memoranda dated September 19 and 29, 1997 and October 6, 1997.

2. Special filing procedures for section 245(i) cases submitted by self- petitioning battered aliens

Although a May 6, 1997 policy memorandum instructed field offices not to accept a Form I-485 from a self-petitioning battered alien until the qualifying Form I-360 petition had been adjudicated, subsequent policy memoranda on the subject of the sunset of section 245(i) of the Act temporarily modified that instruction to allow any battered alien who is subject to section 245(i), who has properly filed an I-360 self-petition, and to whom a visa number is available, to file an I-485, with Supplement A and the $1,000 surcharge, directly with the Vermont Service Center. This temporary option remains in force until January 15, 1998.

This centralized filing is for submission purposes only; the adjustment applications will all be transferred to appropriate INS field offices for interview and adjudication. 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 file the I-360 and I-485 concurrently with the Vermont Service Center, but any such filings must be accompanied by the appropriate fees in order to be considered complete.

Service Offices should inform applicants that their Form I-485 (with all supporting documentation, Supplement A, the application fee and the surcharge) must be received at the Vermont Service Center on or before January 14, 1998. They should also advise them that in the event that the I-360 is denied after the filing of the adjustment application, no refund of filing fees or surcharges applicable to the I-485 will be made.

Starting January 15, 1998, the May 6, 1997 policy memorandum again takes effect. Field offices may accept applications under section 245(i) of the Act only if the Form I-360 petition has been approved and the applicant meets the eligibility requirements of section 245(i) as amended.

3. Processing of applications and petitions received under the special section 245(i) sunset procedures

Adjudicating offices are instructed to review all applications and petitions received under these special section 245(i) sunset procedures as soon as practicable after January 14, 1998, and to act upon them according to the policies discussed in the recent HQ 70/23.1-P memorandum dated October 6, 1997. Form I-485 applicants who are found to have failed to submit a required I-485 Supplement A and section 245(i) surcharge during the period covered in this memorandum should be afforded an opportunity to do so, provided that they are still eligible to apply under the "grandfather" provisions of section 245(i), as amended by Public Law 105- 119.

4. The effect of the January 14, 1998 sunset date on eligibility to apply for adjustment of status under section 245(i) of the Act

Any alien seeking to file a Form I-485 application pursuant to the provisions of section 245(i) of the Act is required to pay the $1,000 surcharge and the base filing fee of $130 at the time the I-485 application is filed with the Service. The Service will process to completion those section 245(i) adjustment applications filed on or before January 14, 1998. On or after January 15, 1998, the Service may not accept the fee either for a new 245(i) application or for a section 245(i) amendment (Supplement A Form I-485 and the $1,000 surcharge) to a pending Form I-485 application, unless it is based upon a visa petition filed with the Attorney General or upon a labor certification filed with the Secretary of Labor on or before January 14, 1998.

The Service will publish appropriate regulatory changes regarding the amended section 245(i) of the Act as soon as possible, as well as any additional guidance that may be required.

Michael A Pearson
Executive Associate Commissioner

Attachment

Attachment: Selected Public Law 105-119 amendments to section 245 of the Immigration and Nationality Act

Section 111(a) of Pub. L. 105-119 amends section 245(i) of the Act to make the benefits of section 245(i)(1) available to:
an aien 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 Pub. L. 105-119 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.