INS Update on 245(i)

Date: Sept. 22, 1997

Subject Instructions regarding approaching sunset of section 245(i) of the Immigration and Nationality Act, amended procedures for section 245(i) cases submitted by self-petitioning battered aliens; and aliens readmitted in non-immigrant h-1b, E, or L status after abandoning a section 245(i) application.

To Regional Directors
District Directors
Officers in charge
Service Center Directors
ODTF Glynco, GA
ODIF Artesia, NM

From: Office of Programs
(HQPGM)

If Congress enacts an extension of section 245(i) of the Immigration and Nationality Act (the Act) prior to its scheduled sunset date of September 30,1997, the statute will provide for continued filing for the benefits of that law. However, Congress may also choose either to renew the provisions of section 245(i) after September 30,1997, or not to renew them at all. Therefore, field offices need to be prepared for the imminent expiration of that statutory provision. With the approaching of September 30, 1997, and the recent policy change regarding "dual intent" for a nonimmigrant in E, H, or L classification, and the Service’s commitment to the protection of victims of domestic violence, some rather significant questions have been raised by field offices. The following offers clarification and instructions on how to deal with some of these issues.

1. The effect of the September 30, 1997, sunset date on eligibility to apply for adjustment of status under section 245(i) of the Act.

As explained in a previous policy memorandum, HQ 70/23.1-P,96-ACT.003, dated February 26, 1997, 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. Although the Service has determined that section 245(i) adjustment applications filed on or before September 30, 1997, may be processed to completion after that date, the Service’s authority to accept such applications, nevertheless, ends with the sunset of section 245(i). As of October 1, 1997, the Service will only be able to accept applications for adjustment of status filed pursuant to section 245(a) of the Act. The Service may not accept the fee either for new 245(i) applications or for section 245(i) amendments (Supplement A Form I-485 and the $1,000 surcharge) to a pending application on Form I-485 after September 30, 1997.

Any Form I-485 application for adjustment that is filed prior to October 1, 1997, without the Supplement A and the $1,000 surcharge may be considered only under the provisions of 245(a) of the Act. When an adjustment application is determined to be subject to the provisions of section 245(i) of the Act, the application must be considered improperly filed and rejected; 8 CFR 103.2(a)(7)(i). In that case, field offices should immediately advise the applicant to amend his or her application in accordance with 8 CFR 245.10(d) and submit the required Supplement A and the $1,000 surcharge, if applicable, on or before September 30, 1997 in order for his or her application to be considered under the provisions of section 245(i) of the Act.

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

Prior to the change this spring which moved the processing of all battered alien I-360 self-petitions to the Vermont Service Center, a self-petitioner for whom a visa number was available could file a Form I-485 concurrently with the Form I-360 in a local INS office. In the May 6, 1997 memorandum on battered alien self-petitioning, offices were instructed not to receipt the I-485 pending adjudication of the I-360 self-petition. Given the September 30, 1997, sunset date for section 245(i), strict enforcement of this instruction may have unduly harsh consequences for spouses and children who would otherwise be eligible to adjust under section 245(i). Accordingly, it is being modified temporarily.

Effective immediately and through September 30, 1997, 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. The alien must be advised that no refunds of filing fees or surcharges applicable to the I-485 will be issued; if he or she files an I-485, and the I-360 is later denied, he or she will also lose the filing fee and surcharge paid for the I-485.

This centralized filing is for submission purposes only - the adjustment applications will all be transferred to appropriate INS field offices for interview and adjudication. This is an interim change only. If Congress extends section 245(i) for a substantial period (as distinguished from an extension of a few days or weeks should a continuing resolution be adopted), the INS will revert to the prior filing procedures for battered alien adjustment applications.

Applicants should be apprised 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 September 30, 1997. These applications should be accompanied by evidence of the filing or 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.

3. Renewal of Section 245(i) application by aliens who were readmitted in h-1b, E, or L status after abandoning their original section 245(i) application

A previous Office of Programs memorandum, HQ 70/6.2.5, 70/6.2.9, 70/6.2.12, 70/23.1, 120/17.2, dated August 5, 1997, addressed the subject of maintenance of E, H, or L nonimmigrant status while an application for adjustment of status is pending. Citing pertinent parts of sections 214(h) and 101(a)(15)(e) of the Act, 8 CFR parts 214.2(h)(16) and (I)(16), the August 5 memorandum concluded that, consistent with the requirements of sections 214(g)(4) and 214(c)(2)(D)(i) and (ii) of the Act and 8 CFR 245.2(a)(4)(ii), a timely filed application for a extension of stay by an E-1, E-2, II-IB or L-1 nonimmigrant alien may be approved notwithstanding the fact of a pending application for adjustment of status. If such an alien seeks readmission on a valid E-!, E-2, H-1B or an L-1 nonimmigrant visa, he or she may be readmitted in that status. It was noted that the Service is in the process of changing existing regulations to remove the requirement of advance parole for these "dual intent" nonimmigrant aliens for the purposes of overseas travel and preserving their pending adjustment applications. However, until such time as existing regulations are changed, "dual intent" E-1, E-2, H-1B or L-1 nonimmigrants must continue to request advance parole for travel outside the United States in order to avoid automatically abandoning their adjustment applications 8 CFR 245.2 (a).

In the meantime, an alien who was maintaining E-1, E-2, H-1B or L-1 nonimmigrant status at the time he or she proceeded abroad without advance parole authorization and thus abandoned his or her pending adjustment application must file a new application on Form I-485, with the required fee, in order to be processed for adjustment of status. 8 CFR 103.2(a)(15). If such an alien wishes to reapply for adjustment under Section 245(i) of the Act, he or she must do so by filing a new Form I-485, with the required fee, together with a completed Supplement A and the $1,000 surcharge, on or before September 30, 1997.

This memorandum has concurrence of the Office of Field Operations, which is issuing additional instructions regarding the handling of section 245(i) cases during the sunset period.

Paul Virtue

Acting Executive Associate Commissioner

Attachment

Notice of Intent to Deny I-485 Application

The Immigration and Naturalization Service has reviewed your application and found you ineligible for adjustment of status under section 245(a) of the Immigration and Nationality Act (the Act) because you have violated a requirement of the United States immigration law and have not applied for relief under section 245(i) of the Act and have not paid the additional sum required for the benefits of section 245(i). This is to advise you that the Service intends to deny your application for adjustment, as well as any other application dependent upon it, unless you complete the attached Supplement A to Form I-485 and submit it with an additional sum of $1,000 as required by section 245(i) of the Act, prior to October 1, 1997. 8 CFR Section 245.10(d). Because the provisions of section 245(i) expire on September 30, 1997, no application under that law may be filed after that date. Mere mailing does not satisfy the requirement. The needed documents and fees must be actually received with the application on Form I-485 and be date-stamped by the appropriate Service office on or before September 30, 1997.

You should be aware that, if you elect to submit the Supplement A and $1,000 additional sum, as in all cases, you must still establish to the satisfaction of the INS that you meet all legal requirements for adjustment of status.

______________

Examining Officer