INS on Improperly Filed 245(i) Cases

Subject: Follow-up procedures and guidance for processing applications and visa petitions which were improperly filed during the sunset of amended section 245(i) of the Immigration and Nationality Act

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

This memorandum provides follow-up guidance and restates some of the procedures for processing improperly filed applications and visa petitions received during the three days prior to the sunset of amended section 245(i) of the Immigration and Nationality Act. On January 9, 1998, we issued a memorandum with instructions regarding the section 245(i) sunset (midnight of January 14, 1998) which summarized current Service policy and prior guidance, and provided new implementation procedures for handling applications and petitions prior to and after the sunset date of the amended section 245(i). It also provided special filing procedures for section 245(i) cases submitted by self-petitioning battered aliens, and, finally, explained the effect of the January 14, 1998 sunset date on eligibility to apply for adjustment of status under section 245(i).

• Summary of special filing procedures which were implemented only on January 12, 13, and 14, 1998 for applications and visa petitions received prior to the sunset of section 245(i)

During the periods when termination of section 245(i) was imminent, the Service sought to facilitate the last minute filings of applications and petitions for eligible immigrants. Therefore, on January 9, 1998, we instructed you to adopt the following special filing procedures on January 12, 13, and through midnight of the 14th: 1) accept all Form I-485 applications submitted under section 245(i), as long as they were signed by the applicants and accompanied by the correct fees; 2) accept all visa petitions which met the threshold filing requirements of 8 CFR 103.2(a)(7)(i) and (ii); 3) permit applicants and petitioners to submit their applications or petitions to any INS district, sub-office, or service center during those three days; and 4) as soon as practicable after January 14, 1998, forward all appropriate applications and petitions, with their accompanying fees, to the other district offices or service centers.

• Follow-up instructions for processing application and petitions received under the special section 245(i) filing procedures.

On January 9, 1998, we also instructed you to review all section 245(i) adjustment applications and petitions received under these special filing procedures as soon as practicable after January 14, and to act upon them according to the policies discussed in the recent HQ 70/23.1-P memorandum dated October 6, 1997. Please continue to follow the procedures set out in that memorandum for section 245(i) adjustment applications, recognizing, of course, that the sunset date was adjusted to midnight of January 14, 1998. You should deposit the fees and complete the adjudication of the applications and petitions which are properly filed under Service regulations. However, you must ensure that you take appropriate action (as detailed in the October 6, 1997 memorandum) on those section 245(i) adjustment applications and visa petitions which do not meet the requirements for proper filing as follows:

• Section 245(i) adjustment application: To be considered "properly filed," an application must meet the following threshold filing requirements as detailed in 8 CFR 103.2(a), and 245.2(a)(2)(i) and 245.10: 1) it must be accompanied by the appropriate filing fee; 2) it must be signed by the applicant; and 3) the applicant must have immediate availability of an immigrant visa. If an application does not meet these threshold requirements, you should return the application and the fee to the applicant with an explanation for the rejection, and keep a copy of the rejection notice in your office files. If you have already processed the fee for an application which fails to meet the above requirements, please follow the instructions in the October 6, 1997 memorandum which described the procedures for rejecting such an application and refunding the applicant’s fee(s).
• Section 245(i) applications submitted by self-petitioning battered aliens: Please follow the guidance set out in the January 9, 1998 memorandum "Section 2, Special filing procedures for section 245(i) cases submitted by self-petitioning battered aliens."
• Visa petitions: There are only two basic reasons to reject a visa petition: 1) if it was remitted with no fee, or an incorrect fee amount, and 2) if it lacks the required signature of the petitioner. In those clear cut cases, return the petition and the fee to the petitioner. If you have already deposited the fees for a petition that you should have rejected, follow the instructions in the October 6, 1997 memorandum regarding refunds of fees.

If you do not have copies of the prior guidance referenced in this memorandum, please contact your Regional or Headquarters counterparts and ask them to send you copies. The Service will publish appropriate regulatory changes regarding the amended section 245(i) of the Act as soon as possible.

Michael A. Pearson
Executive Associate Commissioner