INS on Procedures Under LIFE's 245(i) Physical Presence Rule
Posted Feb 10, 2001

As described in several prior issues of the MurthyBulletin during December 2000 and January 2001, pursuant to the Legal Immigration and Family Equity (LIFE) Act of 2000, the deadline to qualify for 245(i) has been extended to April 30, 2001. We at the Law Office of Sheela Murthy continue to receive queries about the LIFE Act providing some kind of blanket security to the person who is illegal or out of status. That is NOT the case. As described in prior issues, 245(i), while not a legalization or amnesty program, enables persons to go through the regular employer-sponsored or family-based Green Card procedures despite being out of status, or falling out of status at some later point.

Section 245 (i) is Not an Amnesty Program

It is necessary for the person intending to use the benefit of Section 245 (i) to file for the labor certification or immigrant visa petition, whichever is applicable in the particular circumstance, on or before April 30, 2001. When the person eventually reaches the adjustment of status stage, which is the last stage of the Green Card process, the person who is out of status can retroactively correct that problem by filing an additional form (with penalty fee), together with the application to adjust status and the regular filing fees.

As has been mentioned in prior MurthyBulletin articles about 245(i), this law does not grant authorization to be in the U.S. or to work, and does not protect against deportation / removal. Rather, if the beneficiary is still present in the U.S. when the time eventually comes to adjust status, the process can be completed from within the U.S. Without 245 (i), a person who is ineligible to adjust status would have to obtain a visa interview abroad, and leaving after a long period of being out of status in the U.S. would have resulted in the person being subject to the 3-year or 10-year bar, which means that the person would not have been able to return to the U.S. for either three or ten years.

Temporary Extension of Section 245 (i) Until April 30, 2001

The extension of the 245 (i) "sunset date" to April 30, 2001, also carries with it an additional requirement. Persons for whom the labor certification application or immigrant visa petition was filed during the period January 15, 1998 through April 30, 2001 also will have to show, at the time of adjusting status, that they were physically present in the U.S. on December 21, 2000.

INS Jan. 2001 Memo Clarifying Section 245 (i) 

On January 26, 2001, the INS issued a Memorandum clarifying certain aspects of the LIFE Act with respect to Section 245 (i). The INS memo clarifies the following with regard to this new physical presence requirement. First of all, only the principal (the direct beneficiary of the labor certification application or immigrant visa petition), not the dependent family members, must prove physical presence. 

Evidence to Establish Physical Presence on Dec. 21, 2000 

The INS memo also provides guidance as to the type of documentation that can be used as evidence that one was physically present on December 21, 2000. The best evidence, according to the memo, is a document issued by a federal, state, or local government agency. The next best would be a non-government document, such as banking records showing deposits made on or close to the above date. Generally, more than one document will be needed, and it is wise to submit as much documentation as possible. If the applicant chooses to submit an affidavit attesting to physical presence, it is necessary to also provide additional documentation from another source, or for INS to conduct a detailed interview.

If the applicant thinks that a government document proving physical presence is already in his or her INS file, it is possible to submit a statement describing the document, including as much information as possible to enable INS to locate the document. Indicate which agency issued it, date of issue, type of document, and any other information. Please note that with the exception of an item that may be located in one's INS file, it is the applicant's responsibility to obtain whatever government or other documents are needed to prove his or her presence on December 21, 2000, the day the law was signed. For example, INS will not request your tax records for you from IRS. That is still your responsibility.