Additional INS Guidance on 245(i) Sunset

Subject: Section 245(i) Sunset Additional Guidance

Date: September 29, 1997

To: Regional Directors
District Directors
Officers In Charge
Service Center Directors

From: Office of Field Operations

This is additional guidance to the memoranda dated September 19th and September 22nd regarding the sunset of Section 245(i). You must include the following Section 245(i) applicants when accommodating last minute filings until midnight of September 30th.

(1) Employment-Based: An applicant seeking to file Section 245(i) applications based on Section 203(b) employment-based visa petitions are still required by 8 CFR 245.1(g)(1) to present evidence that his/her qualifying visa petition has been approved. Form I-485 filing instructions currently require such applications to be filed at the appropriate Service Center. However, until midnight of September 30, 1997, employment-based Section 245(i) applicants will be allowed to submit evidence of their approval, and to file their adjustment applications, together with any application for EAD, or Advance Parole, with their local INS offices, rather than with the Service Centers. INS field offices must accept these applications and related fees until midnight of September 30th, and date- stamp them according to the date received. On October 1st, INS field offices must bundle up these employment-based applications and fees, and send them to the appropriate Service Center for processing.

(2) Acceptance of Form I-485 Supplement A with Section 245(i) surcharge after I-485 has been filed: In the case of I-485 applicants whose failure to file a required I-485 Supplement A and Section 245(i) surcharge which has come to the attention of the Service prior to October 1, 1997, the Office of Programs policy memorandum HQ 70/23.1-P, dated September 22, 1997, instructed field offices to advise such persons to amend their applications by filing the required supplement fee prior to October 1, 1997. In addition, an I-485 applicant who has independently determined that he or she needs to file the Supplement A and Section 245(i) surcharge may do so prior to October 1st. If a local office accepts such a Section 245(i) surcharge from an applicant whose I-485 application is pending elsewhere, it should process the fee as usual and fax, as soon as possible, the Supplement A and the confirmation that the fee was filed to the office where the I-485 is pending, so as to provide timely verification that the I-485 Supplement A and Section 245(i) surcharge was paid before October 1st.

3) Aliens Who are in Proceedings: Any alien who alleges that he/she is in proceedings and wishes to file pursuant to Section 245(i) may come into an INS office and pay any related appropriate filing fee(s) up through midnight of September 30th, including fees for I-485s, Supplement A, and any applicable waiver applications. If an alien must file a motion to reopen his/her immigration proceedings before an immigration court (not the Board of Immigration Appeals), these applicants may also pay the fees associated with filing such a motion. As with other 245(i) applicants, you must not pre-screen the application(s) or court document(s) that may be presented as evidence that he applicant is in proceedings (e.g. evidence of a pending Motion to Reopen, Notice to Appear, or other court issued documentation of his/her immigration proceedings), for eligibility. Further, for these particular cases only, you must accept the filing fee(s), issue a receipt, and return any document(s) to the applicant/attorney. On the receipt, you must annotate the A number, type of application or court document presented, if any, and the amount(s) of the fee(s). Further, in order to record the type of application or transaction, INS must retain a copy of the receipt with the fee(s) you have received, and if at all possible, a copy of any application or court issued document. (Many attorneys will bring an extra copy of the documentation). The best type of receipt for this purpose would be Form G-211, Receipt for Cash. These are books of receipts with carbons.

Please distribute this additional guidance to the appropriate personnel within your offices. If you have any questions regarding the above, please call Janis Wood at 202/514-8347.

Mark Reed

Acting Executive Associate Commissioner