Website Q & A - April 23, 2007

Can Reader Use 245(i) to Extend H-1B Status in U.S. Although Now Illegal?

Dear Mr. Lee,

I have a Masters degree from the U.S. and was previously in a job on an H-1B visa. Unfortunately I lost the job in 2003. Since that time, I have done nothing with my immigration status. However, I now have an employer who is willing to sponsor me for another H-1B visa. I believe that I am eligible because I had an approved labor certification under section 245 (i) with my former employer with a priority date of March 2001. As I understand, I am able to file and obtain forgiveness from the U.S. government if I pay $1,000. I visited another lawyer who told me that this could be done. I am looking for a second opinion. Can I do this?

Dear reader,

You are wise to seek a second opinion as you either misunderstood what the lawyer was saying or the lawyer gave incorrect advice. Section 245(i) only applies to immigrant and not nonimmigrant situations. If you have another basis to immigrate, eg. second labor certification, family petition, visa lottery, the U.S.C.I.S. will allow you to interview in the U.S. upon payment of a fine amount of $1,000 because you qualify under 245(i) as an individual who filed a labor certification application or immigrant visa petition by April 30, 2001. I do note that individuals qualifying in this category must also prove that they were physically present in the U.S. on December 21, 2000.


Copyright © 2003-2012 Alan Lee, Esq.
The information provided here is of a general nature and may not apply to any particular set of facts or circumstances. It should not be construed as legal advice and does not constitute an engagement of the Law Office of Alan Lee or establish an attorney-client relationship.