INS on 245(k) Clarification

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

From: Office of Adjudications

Subject: Clarification regarding the effective date of benefits under section 245(k) of the Immigration and Nationality Act

This is a supplement to the previous policy memorandum HQ 70/23.1-P dated November 28, 1997, regarding changes in section 245 of the Immigration and Nationality Act (the Act) that were imposed by Section 111 of Public Law 105-119, signed into law on November 26, 1997. That law introduced a new section 245(k) of the Act, which provides that certain aliens who

• were lawfully admitted to the United States and who
• are eligible to receive an employment based immigration visa under
• section 203(b) paragraphs (1), (2), or (3), or
• section 203(b)(4), in the case of a section 101(a)(27)(C) religious worker, became eligible to apply for adjustment under section 245(a); provided that subsequent to their admission they have not, for an aggregate period of more than 180 days,
• failed to continuously maintain a lawful status,
• engaged in unauthorized employment, or
• otherwise violated the terms and conditions of their admission.

Applicants who meet these eligibility requirements of section 245(k) of the Act became entitled to its benefits as of the date of enactment of Public Law 105-119. Effective November 26, 1997, therefore, these applicants, if otherwise eligible to adjust status under section 245(a) of the Act, are no longer required to submit the Form I-485 Supplement A or to pay the section 245(i) surcharge.

There may be some of these adjustment applicants who have erroneously submitted a section 245(i) surcharge fee between November 26, 1997, and January 15, 1998. Should any office encounter such an application which is not yet processed, the office should return the Form I-485 Supplement A and section 245(i) surcharge fee to the applicant with an appropriate explanation. Any office that has inadvertently processed a section 245(i) application fee submitted by a qualified section 245(k) applicant after November 26, 1997, is instructed to initiate a request for refund of the section 245(i) surcharge and to notify the applicant of that action as soon as the facts come to its attention.

This memorandum has the concurrence of the Office of Field Operations.

Jacquelyn A. Bednarz
Acting Assistant Commissioner