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U.S. Department of Justice MEMORANDUM FOR
FROM:
SUBJECT: Field
Guidance regarding eligibility for Section 245(i) under the Legal Immigration Family
Equity Act
On March 26,
2001, an interim rule was published in Federal Register (66 FR 16383) to amend the
regulations at 8 CFR 245.10 establishing eligibility for adjustment of status under
Section 245(i) of the Immigration and Nationality Act (INA). This memorandum supplements the January 26, 2001
and April 6, 2001 memoranda. This memorandum primarily discusses issues concerning
eligibility for Section 245(i) as it relates to the postmark issue. All offices are reminded that only a visa petition
or labor certification can provide eligibility for Section 245(i) of the INA.
Applications
filed under the "old" Section 245(i) priority date (on or before January 14,
1998) are not subject to postmark issues. In
addition, applications for adjustment of status with an approved petition do not have
postmark issues and may be filed at any time, provided a visa number is available and
other eligibility criteria are met. I.
Timely
Filing Determined by Postmark:
The Legal Immigration Family Equity Act (LIFE Act) sets an April
30, 2001 deadline for receipt of visa petitions and labor certification applications when
an applicant requests consideration under Section 245(i).
Any immigrant visa petition physically received by the INS on or before
April 30, 2001 is timely filed. However the
March 26, 2001 interim rule contains a significant addition. Immigrant visa petitions postmarked on or before April 30, 2001 will also
be deemed timely filed and thus qualified for eligibility under Section 245(i). The postmark date is not, in and of itself, a
priority date. A priority date can only be
accorded after an immigrant visa petition has been reviewed according to Service policy. For the purposes of the implementation of Section 245(i) of the
INA, as amended by the LIFE Act, the term "postmark" means a stamp or other mark
of cancellation placed on an envelope or package by the United States Postal Service
(USPS). Field Offices and Service Centers must retain evidence of the
mailing date as part of the record of proceeding for all immigrant visa petitions and
applications for adjustment of status received between May 1, 2001 and May 3, 2001,
inclusive. For these applications and
petitions, the original or a copy of the postmarked envelope, private mail service invoice
or metered mail envelope shall be included in the record of proceeding of each application
or petition submitted in that envelope. A.
Postmarked
mail: All applications and petitions postmarked by the USPS that bear a
postmark date on or before April 30, 2001, regardless of the date of receipt, shall
be considered filed on the date indicated on the postmark for the purposes of Section
245(i) eligibility. Any petition meeting this
criteria received on or after May 1, 2001 should be stamped with the "Filed Prior to
245(i) Sunset" stamp. B.
Illegible
Postmarks and Missing Postmarks: An application or petition mailed to the Service in an envelope
with an illegible or missing postmark is to be considered postmarked on the sunset date,
providing it is physically received by the Service: (1) on or before April 30, 2001, or (2) during
that same period of time as the Service continues to receive material that was postmarked
by the USPS by April 30, 2001. In most cases
the Service anticipates that period of time will occur within three days of the sunset
date. This means, for the purpose of establishing a consistent and
practical policy in determining eligibility for Section 245(i), only, the Service
has decided that an application or petition received by mail after April 30, 2001 without
a postmark or bearing an illegible postmark, shall be considered timely filed if
physically received by the Service by the close of business May 3, 2001. Those petitions that meet this criteria, should be
stamped with the "Filed Prior to 245(i) Sunset" stamp. C.
Private
Mail Service: Applications and petitions delivered by private mail service (other
than the USPS), such as Federal Express, shall be considered received without a postmark.
For the purposes of Section 245(i) INA, an application or petition received via private
mail service after the sunset date shall be considered the same as a package with an
illegible or missing postmark. D.
Metered
Mail: Applications and petitions received in envelopes with metered
postage, shall be considered timely received if: a) There is a USPS
cancellation postmark dated on or before April 30, 2001, or b) No USPS
cancellation postmark is present but the metered date is on or before April 30, 2001 and the envelope is received on or before
May 3, 2001. Any petitions received on or after May 1, 2001 that meet the
criteria should be stamped with the "Filed Prior to 245(i) Sunset" stamp. E.
"Filed Prior to 245(i) Sunset" Stamp: Applications and petitions received after the sunset date that meet
the guidelines provided in Section I, shall be marked with a stamp indicating "Filed
Prior to 245(i) Sunset." In short, all
cases considered filed on or before the sunset date that are received on or after May 1,
2001, shall bear a "Filed Prior to 245(i) Sunset" stamp. Service Centers and
Regional Offices will be responsible for the distribution of the "Filed Prior to
245(i) Sunset" stamps for their jurisdiction. The "Filed Prior to 245(i) Sunset" stamp will serve as
notification that the application or petition appears to have been filed on or before the
sunset date. It shall not be binding on a
Service Officer when determining whether an applicant for adjustment of status is entitled
to benefits under Section 245(i) of the INA, as amended by the LIFE Act and Life Act
Amendments of 2000. II.
Accepting
Out-of-Jurisdiction Filings Effective
on the date of this memorandum, Field Offices and Service Centers shall accept all
properly filed immigrant visa petitions and applications for adjustment of status with fee
and signature, without regard to jurisdiction. This
policy shall continue through the close of business April 30, 2001 for applications filed
in person, and through May 3, 2001 for applications filed by mail. All Field Offices should accept the following filings:
Any applications or petitions accepted that are not adjudicated locally should be forwarded to the appropriate Service Center. Service Centers should accept all properly filed applications or
petitions indicated above, without regard to jurisdiction.
Service Centers should then forward the applications or petitions to the
appropriate office. Offices should NOT accept the following filings:
III. Fees Any fee receipting and data entry functions not completed at the
time the application or petition is received, must be performed, in accordance with
Department of Treasury regulations, after the Sunset date.
Applicants requiring a document showing delivery on the sunset date should
be encouraged to send the petition/application by mail using a postal service that
provides a receipt. If the receipting is performed, the following guidelines should be
followed: 1.
If
an applicant submits a single check for multiple applications and/or petitions and the fee
is incorrect, all of the applications should be returned to the applicant and a receipt
should not be issued. 2.
If an applicant submits multiple checks for
multiple applications and/or petitions and the fee is incorrect on some of the
applications, the applications with the incorrect amounts should be returned. Receipts should be issued for those with correct
amounts. 3.
In
the case of multiple checks, where one application is dependent upon the principal
application being accepted, every attempt should be made to fee in the principal
application first followed by any riding applications.
If the principal application must be returned, all riding applications must
be returned. 4.
Applicants/Attorneys
should be encouraged, during this period, to submit separate checks for each application
and/or petition to prevent the entire application package from being returned for improper
fees. 5.
All
offices should continue their normal practice with regards to the acceptance of cash. IV. Contact Additional information on handling applications and petitions, in
light of Section 245(i) INA, as amended, may be gleaned from memoranda on the topic dated
January 26, 2001 and April 6, 2001. Service
Centers should direct questions to Danielle Lee at 202-514-6328. Field Offices should direct questions to Kathy
Dominguez at 202-616-1050.
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