DEPARTMENT OF JUSTICE

Immigration and Naturalization Service

8 CFR Part 245 [INS No. 2078-00;

AG Order No. 2411-2001] RIN 1115-AF91

Adjustment of Status To That Person Admitted for Permanent Residence; Temporary Removal of Certain Restrictions of Eligibility AGENCY: Immigration and Naturalization Service, Justice, and Executive Office for Immigration Review, Justice.

SUMMARY: The Department of Justice (Department) is amending its regulations governing eligibility for adjustment of status under section 245(i) of the Immigration and Nationality Act (Act) to conform the regulations to existing policy and procedures and to remove language that has been superseded by subsequent legislation. Specifically, this interim rule conforms the regulations to include the changes made by the Departments of Commerce, State, Justice and the Judiciary Appropriations Act of 1998 and the Legal Immigration Family Equity Act Amendments of 2000. This rule adds the new sunset date of April 30, 2001, for the filing of qualifying petitions or applications that enable the applicant to apply to adjust status using section 245(i) of the Act, clarifies the effect of the new sunset date on eligibility, and discusses motions to reopen. This means that in order to preserve the ability to apply for adjustment of status under section 245(i), an alien must be the beneficiary of a visa petition for classification under section 204 of the Act that was filed with the Attorney General, or an application for labor certification properly filed with the Secretary of Labor, on or before April 30, 2001, and determined to have been approvable when filed. This rule also provides guidance on the standard for review of immigrant visa petitions and applications for labor certification filed on or before April 30, 2001.

Background

What Is Section 245 of the Act?

Section 245 of the Act (8 U.S.C. 1255) allows the Attorney General, in his discretion, to adjust the status of an alien who has an immigrant visa immediately available to that of a lawful permanent resident (LPR) while the alien remains in the United States in lieu of applying for an immigrant visa at a U.S. consular office abroad, if certain conditions are met. An alien must have been inspected and admitted or paroled, be eligible for an immigrant visa and admissible for permanent residence and, with some exceptions, have maintained lawful nonimmigrant status. The alien must not have engaged in unauthorized employment.

What Is Section 245(i) of the Act?

Section 245(i) of the Act (8 U.S.C. 1255(i)) allows certain aliens with an immigrant visa immediately available to them to apply to adjust status upon payment of a $1,000 surcharge, even though the alien entered the United States without inspection or does not meet the maintenance of status and authorized employment requirements of section 245(c) of the Act (8 U.S.C. 1255(c)). Section 245(i) of the Act does not excuse any grounds of inadmissibility under section 212(a) of the Act (8 U.S.C. 1182(a)).

The Departments of Commerce, State, Justice and the Judiciary Appropriations Act of 1998, Public Law 105-119, section 111 (111 Stat. at 2458) (1997), significantly revised Section 245(i) and set a January 14, 1998, sunset date. After January 14, 1998, an alien could file an application for adjustment of status under Section 245(i) of the Act only if that alien was the beneficiary of either (1) an immigrant visa petition under Section 204 of the Act (8 U.S.C. 1154) that was filed with the Attorney General on or before January 14, 1998; or (2) an application for labor certification that was filed pursuant to the regulations of the Secretary of Labor by the alien's employer on or before that date. Such a visa petition or application for labor certification served to ``grandfather'' the alien beneficiary (that is, to preserve the alien's ability to file an application for adjustment of status under Section 245(i)) if the visa petition or application for labor certification was properly filed on or before the sunset date, under the appropriate regulations, and was approvable when filed.

What Changes Were Made by the Most Recent Amendments to Section 245(i)?

The Legal Immigration Family Equity Act Amendments of 2000, Title XV of Public Law 106-554, section 1502 (114 Stat. at 2764) (enacted Dec. 21, 2000) (the LIFE Act Amendments) extended the Section 245(i) (8 U.S.C. 1255(i)) sunset date from January 14, 1998, to April 30, 2001. That Act also requires that, if the qualifying visa petition or labor certification application was filed after January 14, 1998, the alien must have been physically present in the United States on the date of enactment (December 21, 2000) to be eligible to apply for adjustment of status under Section 245(i).

How Does an Alien Become Grandfathered for Purposes of Section 245(i) of the Act?

To be grandfathered for purposes of Section 245(i) of the Act (8 U.S.C. 1255(i)), the alien must be the beneficiary of an immigrant visa petition or a labor certification application that (1) is filed on or before April 30, 2001, and (2) meets the requirements of the Act and these regulations. A visa petition or labor certification application that meets all of the applicable requirements so as to grandfather the alien beneficiary is referred to as a qualifying visa petition or a qualifying labor certification application. In addition, if the qualifying petition or qualifying application was filed after January 14, 1998, the alien beneficiary must also have been physically present in the United States on December 21, 2000, to be eligible to apply for adjustment under Section 245(i). The physical presence requirement is discussed later. Since Section 245(i) was amended in 1997, the Department has adopted what has come to be known as an ``alien-based'' reading of Section 245(i). This means that the alien is grandfathered by the filing of a qualifying visa petition or qualifying labor certification application, for purposes of preserving the alien's eligibility to apply to adjust status under Section 245(i), but the alien is not limited to that particular petition or application as the only possible basis for adjustment of status. The qualifying petition or application that grandfathers the alien serves to preserve the alien's opportunity to file for adjustment of status under Section 245(i) at a later time, at which point the grandfathered alien becomes eligible for adjustment of status on any proper basis. For example, if an alien is properly grandfathered as the beneficiary of a qualifying visa petition or qualifying application that was filed on or before April 30, 2001, the alien would also be eligible to adjust status under Section 245(i) if he or she later won a diversity visa.

Are the Dependent Family Members of a Grandfathered Alien Also Considered To Be Grandfathered?

Yes, a dependent spouse or child (if eligible under section 203(d) of the Act (8 U.S.C. 1153(d))) who is accompanying or following to join a grandfathered alien is also considered to be grandfathered by the qualifying petition or qualifying application for labor certification, if the relationship exists before the principal alien adjusts his or her status.

What Documents Must Be Filed on or Before April 30, 2001? The new sunset date of April 30, 2001, is the deadline for the filing of a qualifying visa petition or qualifying labor certification application in order to grandfather the alien beneficiary. To preserve the alien's ability to apply in the future for adjustment of status under Section 245(i) (8 U.S.C. 1255(i)), an alien must be the beneficiary of either (1) a qualifying Section 204 of the Act (8 U.S.C. 1154) immigrant visa petition that is properly filed with the Attorney General on or before April 30, 2001, and which is determined to have been approvable when filed; or (2) a qualifying application for labor certification that is properly filed on or before April 30, 2001, according to the regulations of the Secretary of Labor, and which is determined to have been approvable when filed. An alien is not required to file his or her application for adjustment of status under Section 245(i) on or before April 30, 2001. If an alien is grandfathered (because he or she is the beneficiary of a qualifying visa petition or qualifying labor certification application filed on or before April 30, 2001), the alien will be able to submit the actual application for adjustment of status under Section 245(i) at any later time when an immigrant visa becomes available to the alien.

What Are the Requirements for a Qualifying Immigrant Visa Petition?

An alien becomes grandfathered for purposes of Section 245(i) of the Act (8 U.S.C. 1255(i)) if he or she is the beneficiary of an immigrant visa petition under Section 204 of the Act (8 U.S.C. 1154) on his or her behalf that is properly filed with the Service on or before April 30, 2001. This includes any of the following:

Form I-130, Petition for Alien Relative, filed on behalf of the alien beneficiary;

Form I-140, Immigrant Petition for Alien Worker, filed by an employer on behalf of the beneficiary;

Form I-360, Petition for Amerasian, Widow(er), or Special Immigrant, filed on behalf of the beneficiary or submitted as a self- petition under Section 204(a)(1)(A)(iii) or (a)(1)(A)(iv) filed by an eligible alien; and

Form I-526, Immigrant Petition by Alien Entrepreneur. In any case, the visa petition must be determined to have been approvable when filed in order to grandfather the alien for purposes of Section 245(i), as discussed below. A visa petition does not serve to grandfather the alien beneficiary if that alien has previously obtained lawful permanent resident status on the basis of that visa petition.

Other types of applications or petitions for immigration benefits-- including but not limited to asylum applications, diversity visa applications, and diversity visa lottery-winning letters--do not serve to grandfather an alien for purposes of Section 245(i), because they do not satisfy the statutory requirement that the alien must be the beneficiary of a qualifying immigrant visa petition for classification under Section 204 of the Act filed with the Attorney General or a qualifying labor certification application filed with the Secretary of Labor. Under current law, unless an alien is properly grandfathered as the beneficiary of a qualifying visa petition or qualifying application that was properly filed on or before April 30, 2001, the alien will not be able to take advantage of Section 245(i) even if he or she becomes eligible for an immigrant visa at some later date.

When Is an Immigrant Visa Petition ``Properly Filed on or Before April 30, 2001''?

To be considered properly filed, for purposes of grandfathering, the immigrant visa petition must be physically received by the Service prior to the close of business on or before April 30, 2001, or if mailed, be postmarked on or before April 30, 2001.

The Service is applying the exception for grandfathering visa petitions contained in the regulations at 8 CFR Sec. 103.2(a)(7), which require that a petition must be physically received and stamped by the Service in order to be considered properly filed. For the purpose of grandfathering under section 245(i) of the Act (8 U.S.C. 1255(i)) only, the Service will accept as properly filed, visa petitions that are postmarked on or before April 30, 2001. In addition, given the April 30, 2001, sunset date, the Service notes that it will accept visa petitions that contain at least the minimum amount of information required by 8 CFR 103.2(a). Petitions that do not contain the names of the petitioner and the beneficiary, the proper fee, and the signature of the petitioner will not be accepted for filing.

When Is an Immigrant Visa Application ``Approvable When Filed'' for Grandfathering Purposes?

Not all immigrant visa petitions that are properly filed on or before April 30, 2001, will serve to grandfather the alien beneficiary for purposes of Section 245(i) of the Act (8 U.S.C. Sec. 1255(i)). In interpreting the language of Section 245(i) since it was amended in 1997, the Department has also required that the visa petition must have been ``approvable when filed'' to qualify the alien beneficiary for grandfathering. ``Approvable when filed'' means that, as of the date of filing the immigrant visa petition, the petition was properly filed, meritorious in fact, and non-frivolous (``frivolous'' meaning patently without substance). For example, a visa petition is not approvable when filed if it is fraudulent or if the named beneficiary did not have, at the time of filing, the appropriate family relationship or employment relationship that would support the issuance of an immigrant visa.

As noted, the Department recognizes that some immigrant visa petitions may be filed initially without all of the necessary information for the Service to adjudicate the petition. In that case, the existing regulations at 8 CFR 103.2(b)(8) provide a process for the Service to request additional evidence and to allow the petitioner a period of 12 weeks to submit that additional evidence in support of the petition. It is important to note, though, that all eligibility requirements must be satisfied before an immigrant visa petition can be approved. A visa petition will not qualify an alien for grandfathering unless the Service is able to determine, based on the available information (including additional evidence submitted by the petitioner after the filing of the petition) that the petition was approvable when filed. If the Deparment has already approved the visa petition at the time the alien files an application for adjustment of status, it was approvable when filed, except as discussed below, and thus provides a basis for grandfathering. However, a visa petition may still serve as the basis for grandfathering even if it has not been adjudicated by the Service as of April 30, 2001. As discussed below, the adjudication of the visa petition on the merits is distinct from the question of whether the petition qualifies for grandfathering because it was approvable when filed.

What if an Immigrant Visa Petition Is Properly Filed on or Before April 30, 2001, but Is Later Denied, Withdrawn, or Revoked? An immigrant visa petition on behalf of an alien beneficiary that is properly filed on or before April 30, 2001, but is subsequently denied or withdrawn, or the approval of which is revoked, may still serve to grandfather the alien, depending on the reasons for the disposition of the visa petition. The issue is whether the visa petition was approvable when filed. Changed Circumstances Arising After the Time of Filing As long as a qualifying visa petition was approvable when filed, the petition will still grandfather the alien even if the petition was denied or revoked due to circumstances arising after the filing of the petition as outlined at 8 CFR Sec. 205.1(a)(3)(i) or (ii). Such changed circumstances would include but are not limited to a child who has reached age 21 before the principal alien could adjust status, an employer going out of business, or a valid, bona fide marriage ending in divorce before the alien could adjust status. These same principles apply where the petitioner withdraws an immigrant visa petition. For example, an employer that had filed an immigrant visa petition for an alien may suffer a business reversal 18 months after the date of filing and, as a result, withdraw the petition. In that case, the alien would still continue to be grandfathered for purposes of Section 245(i) of the Act, if the petition was approvable at the time of filing. Under the ``alien-based'' reading, a grandfathered alien is not limited to filing for adjustment of status using the particular visa petition that provided the basis for grandfathering. Thus, a properly grandfathered alien with a petition that was denied or revoked due to circumstances arising after the filing of the petition may apply to adjust status using any other proper basis for adjustment. Although grandfathered by the denied or revoked petition, the alien may not use that petition as an adjustment basis, given that the petition was not approved. Immigrant Visa Petitions Denied or Revoked Based on Ineligibility When the Service has denied an immigrant visa petition (or has revoked a prior approval) based on ineligibility at the time of filing, the petition does not qualify to grandfather the alien beneficiary for purposes of section 245(i). Such ineligibility may be based on meritless or fraudulent petitions, such as those in which the claimed family or employment relationship at the time of the filing cannot serve as the basis for issuance of an immigrant visa.

When Is a Labor Certification Application ``Properly Filed on or Before April 30, 2001''?

To be considered properly filed, for purposes of grandfathering under Section 245(i) of the Act (8 U.S.C. 1255(i)), a labor certification application must be filed on or before April 30, 2001, according to the regulations established by the Department of Labor, 20 CFR 656.21. The sponsoring employer must properly complete and sign ETA Form 750, Parts A and B. The Labor Department considers an application for labor certification that is filed and accepted at a State Employment Security Agency (SESA) to be properly filed. What Happens if an Employer Substitutes a New Beneficiary on a Labor Certification Application After April 30, 2001? Only the alien who was the beneficiary of an application for labor certification on or before April 30, 2001, will be considered to be grandfathered for purposes of Section 245(i) of the Act (8 U.S.C. 1255(i)).

When Is an Application for Labor Certification ``Approvable When Filed'' for Grandfathering Purposes?

Not all applications for labor certification that are properly filed on or before April 30, 2001, will serve to grandfather the alien beneficiary for purposes of Section 245(i) of the Act (8 U.S.C. 1255(i)). In interpreting the language of Section 245(i) since it was amended in 1997, the Department has also required that the application for labor certification must have been ``approvable when filed'' to qualify the alien beneficiary for grandfathering. ``Approvable when filed'' means that, as of the date of filing of the application for labor certification, the application was properly filed, meritorious in fact, and non-frivolous (``frivolous'' meaning patently without substance).

What Happens if an Alien Is Already in Immigration Proceedings?

If an alien is already in immigration proceedings and believes that he or she may be eligible to apply to adjust status under Section 245(i) of the Act (8 U.S.C. 1255(i)), he or she should raise the matter with the Immigration Judge or the Board of Immigration Appeals according to the established procedures. Certain aliens in exclusion proceedings and certain arriving aliens, however, cannot apply for Section 245(i) adjustment.

If an Alien Already Is the Subject of a Final Order of Removal, Deportation or Exclusion, What is the Procedure for Moving To Reopen Based on Section 245(i)?

The LIFE Act Amendments contain no special provisions for reopening cases under Section 245(i) of the Act (8 U.S.C. 1255(i)) where an alien already is the subject of a final order of removal, deportation or exclusion. Accordingly, motions to reopen based on Section 245(i) will be governed by the Department's current rules regarding motions to reopen, 8 CFR 3.23 (before the Immigration Judge) and 3.2 (before the Board of Immigration Appeals), which contain time and numerical limitations on the filing of such motions. See 8 CFR 3.23(b)(1) and 3.2(c)(2). The rules, however, do provide for limited exceptions to these time and numerical limitations, among which is a motion to reopen filed jointly by the alien and the Service counsel in the case. Therefore, an alien who is the subject of a final order who alleges eligibility for adjustment of status under Section 245(i) may contact the Service counsel to request the filing of a joint motion to reopen. The Service will exercise its discretion in reviewing these cases. However, there are provisions in the Immigration and Nationality Act which limit the Attorney General's ability to grant certain forms of discretionary relief, including adjustment of status, for a period of time, to particular categories of aliens with final orders, including but not limited to aliens whose orders were entered in absentia for failure to appear, and aliens who failed to voluntarily depart the United States within the time period specified.

How is an Alien's Nonimmigrant Status in the United States Affected if he or she is Grandfathered?

An alien's nonimmigrant status in the United States is not affected by the fact that he or she is grandfathered. The petition that serves to grandfather the alien neither extends an alien's nonimmigrant status nor authorizes employment in the United States. The immigrant visa petition or application for labor certification that serves to grandfather the alien does not serve to stay any order of removal, deportation, or exclusion.

What Effect Does a Grandfathering Petition Have on an Alien's Unlawful Presence in the United States if he or she Has Entered Without Inspection or Remained Beyond the Authorized Period of Admission?

The mere filing of a visa petition or application for a labor certification that has the effect of grandfathering the alien has no effect on an alien's unlawful presence in the United States and does not place the alien in a ``period of stay authorized by the Attorney General'' for purposes of section 212(a)(9)(B) of the Act (8 U.S.C. 1182(a)(9)(B)). Absent some other factor placing the alien in such a period of authorized stay, the alien continues to accrue periods of unlawful presence until he or she properly files an application for adjustment of status. A properly filed application for adjustment of status under Section 245(i) of the Act (8 U.S.C. 1255(i)) places the alien in a ``period of stay authorized by the Attorney General'' for purposes of section 212(a)(9)(B) and (C) of the Act (8 U.S.C. 1182(a)(9)(B) and (C)). Filing an application for adjustment of status stops the accrual of unlawful presence, but does not eliminate periods of unlawful presence accrued before such filing.

When Is an Alien Applying for Adjustment of Status Under Section 245(i) Required to Demonstrate Physical Presence in the United States?

If an alien is the beneficiary of a qualifying immigrant visa petition, or qualifying application for labor certification, that was filed after January 14, 1998, then the alien must have been physically present in the United States on December 21, 2000, to be eligible to use Section 245(i) of the Act (8 U.S.C. 1255(i)). The physical presence requirement does not apply if the qualifying petition or application was filed on or before January 14, 1998, regardless of when the Section 245(i) application for adjustment of status itself is filed. Proof of a grandfathered alien's physical presence is not required to be presented when a visa petition or labor certification application is filed; such proof must be presented when the alien files the Section 245(i) application for adjustment of status itself.

How Can an Applicant Demonstrate That he or she Was Physically Present in the United States on December 21, 2000?

Applicants for adjustment under Section 245(i) of the Act (8 U.S.C. 1255(i)) who are covered by the physical presence requirement must submit, at the time they file the Section 245(i) application for adjustment of status, evidence that they were physically present in the United States on December 21, 2000. The Act is silent as to the methods by which an applicant may demonstrate his or her physical presence in the United States on that date. This rule provides guidance as to what evidence an applicant may submit to prove physical presence in the United States on December 21, 2000. This guidance largely corresponds to the existing regulations at 8 CFR 245.15(i) for aliens who must demonstrate physical presence on a specific date for purposes of the Haitian Refugee Immigrant Fairness Act of 1998 (HRIFA). The rule will incorporate, in part, the forms of documentation accepted in HRIFA regarding physical presence (8 CFR 245.15(i) and (j)(2)) and adopt them as examples of possible proof of physical presence for section 245(i). The Department is also soliciting comments on what type of evidence can be best utilized to demonstrate physical presence on December 21, 2000. In some cases, a single document may suffice to establish the applicant's physical presence on December 21, 2000. In most cases, however, the alien may need to submit several documents, because most applicants may not possess documentation that contains the exact date of December 21, 2000. In such instances, the applicant should submit sufficient documentation establishing the applicant's physical presence in the United States prior to and after December 21, 2000. An alien may make the demonstration of physical presence by submitting a photocopy of a Federal, state, or local government-issued document(s) that demonstrates the alien's physical presence in the United States on December 21, 2000 (or before and after that date). If the alien is not in possession of such a document or documents, but believes that a copy is already contained in the Service file relating to him or her, he or she may submit a statement as to the name and location of the issuing Federal, state, or local government agency, the type of document and the date on which it was issued. Examples of such Service issued documents include, but are not limited to, Form I-94, Arrival-Departure Record, Form I-862, Notice to Appear, Form I-122, Notice to Applicant for Admission Detained for Hearing before Immigration Judge, or Form I- 221, Order to Show Cause. Examples of such Federal, state, or local government issued documents include, but are not limited to, a state driver's license or identification card, a county or municipal hospital record, a public college or public school transcript, income tax records, a Federal, State, or local governmental record which was created on or prior to December 21, 2000, shows that the applicant was present in the United States at the time, or a transcript from a private or religious school that is registered with, or approved or licensed by, appropriate State or local authorities. If there are no government-issued documents that demonstrate an alien's physical presence on December 21, 2000, the Service will accept and evaluate non-government issued documents. Such documentation must bear the name of the applicant, have been dated at the time it was issued, and bear the seal or signature of the issuing authority (if the documentation is normally signed or sealed), be issued on letterhead stationery, or be otherwise authenticated. A personal affidavit attesting to physical presence on December 21, 2000, will not be accepted without additional evidence to validate the affidavit. Examples of such non-government issued documents include, but are not limited to, school records, rental receipts, utility bills, cancelled personal checks, employment records, or credit card statements. In all cases, any doubts as to the existence, authenticity, veracity, or accuracy of the documentation shall be resolved by the official government record, with records of the Service and the Executive Office for Immigration Review (EOIR) having precedence over the records of other agencies. Furthermore, determinations as to the weight to be given any particular document or item of evidence shall be solely within the discretion of the adjudicating authority (i.e., the Service or EOIR). It shall be the responsibility of the applicant to obtain and submit copies of the records of any other government agency that the applicant desires to be considered in support of his or her application.

Do the Dependent Family Members of a Grandfathered Alien Need to Meet the December 21, 2000, Physical Presence Requirement?

No, the dependent spouse or children of a grandfathered alien are not required to meet the physical presence requirement. Only the principal beneficiary of an immigrant visa petition or application for labor certification filed after January 14, 1998, and on or before April 30, 2001, needs to demonstrate his or her physical presence in the United States on December 21, 2000.