World Journal Weekly Q & A - January 20, 2008December 21, 2000 Presence is Required for 245(i) Benefits For Those Relying on Labor Certification Application or Immigrant Visa Petition Filing Between 1/15/98-4/30/01Dear Mr. Lee, I applied for my labor certification application by the end of March 2001, had it approved, and also had my I-140 preference petition approved. I have now applied for my I-485 application to adjust status in the U.S., but just received a request from Immigration to provide materials that I was in the U.S. on December 21, 2000. I have been in the United States constantly since 1999 except for a 2-week trip to Malaysia from December 15, 2000 to January 1, 2001. At the time, I traveled on a F-1 student visa but did not attend classes after I reentered. But I never got any problem from this from Immigration. I already gave Immigration a copy of my passport showing the information on my trip. My boss is a nice person, but I do not think that he will hold my job if I have to leave the United States for a long time or no longer have work permission for a period of time. What can I do? Dear reader: You have a difficult situation because the law explicitly requires that for section 245(i) benefits to be conferred for labor certification applications or immigrant visa petitions filed between 1/15/98-4/30/01, you must be specifically present in the United States on 12/21/00. I am not aware of any exception to the rule. If you wish to continue with the I-485 response, your choices are to send in documentation of your presence in the U.S. around the time of 12/21/00 and hope that the examining officer turns a blind eye to the fact that you were not in the U.S. on that specific date, or to return such documentation with a full-fledged explanation and argue that you were in substantial compliance with the section 245(i) law. However, such explanation and argument might have the effect of preventing an examining officer from turning a blind eye. If you decide on the other hand to pursue consular processing instead of adjustment of status, you should understand that there is a good possibility that you will not have work permission and may have to leave the U.S. for a period of time. You do not appear to be subject to the 3 or 10 year bar upon return even though you have been illegal in the U.S. because the F-1 status is not date specific, and non-date specific statuses do not accrue time for purposes of the 3 or 10 year bar unless the U.S.C.I.S. has denied an application or you have received an order from an immigration judge. You could request to withdraw the I-485 application in such case and that the I-140 approval be forwarded to the American consulate in Malaysia. There is however the probability that U.S.C.I.S. will not automatically transfer the I-140 petition, but will request you to file an I-824 application for action on an approved application or petition to move the file. You are legally not entitled to employment permission once the I-485 is withdrawn. Then you will have to begin the consular processing which will probably take 9-12 months provided that the priority date remains current. I do note that you may face one other problem having to do with not attending school after returning to the U.S. in January 2001. Unless there is a valid explanation for nonattendance, a consular officer could make a finding of entry fraud which would bar you from the U.S. unless you qualify for a waiver based upon extreme hardship to a U.S. citizen or permanent resident parent or spouse. Options for Businessman Coming to the United StatesDear Mr. Lee, I was born in China, but moved to Chile 20 years ago and now have a factory that employs 200 people. I'm interested in coming to the United States. I have companies that I deal with already in the U.S. and two of the smaller ones are willing to sell part of their companies to me. What are the possibilities for me to come to the U.S. either on a long-term visa or with the green card? Dear reader: Your options will depend upon what you and your company in Chile are willing to do obtain your status. I am certain that given your situation, you would have no problems in presently obtaining a B-1/B-2 business/visiting visa to enter the U.S. That visa allows short-term stays in the country. If you wish to benefit yourself on a longer term without reference to your company in Chile, you could possibly apply for an E-1 treaty trader visa when you establish or take over or become a 50% owner of a U.S. company in which the bulk of trade would flow between Chile and the United States. The E-1 is a non-immigrant visa which allows individuals to stay in the United States for many years. A green card can be achieved through investment of $500,000 or $1 million investment in a commercial enterprise, which involves the hiring of at least 10 U.S. employees. There are several ways to do this including the establishment of your own company or taking part in a regional investment program. If you wish to establish a connected company to your company in Chile (affiliation must be proved by at least 50%), you would be eligible to apply for an L-1A intracompany transferee visa and later permanent residence through the U.S. company's sponsorship without the need to go through the burdensome labor certification and long waiting period attached to most immigration applications. In the event that none of these options appeal to you, you may be able to obtain an H-1B1 Singapore/Chile Professional Free Trade Agreement visa to work for a U.S. company which may need your managerial skills. I assume that you have education and many years of managerial experience. The company may later sponsor you with a green card as a manager through the labor certification process. These are the immediate options which come to mind in looking over your situation.
Employment Green Card Possibility for a J-1 Exchange Visitor Overstay no Longer Subject to a Two-year Foreign Residence Requirement Who is Without 245(i) ProtectionDear Mr. Lee, I came from Belgium three years ago under a J-1 visa to take part in a culinary institute program. I was subject to the two year residence requirement as an exchange visitor because I was originally from China, but I got that waived last year with assistance from the Chinese consulate in New York. My status expired on my DS-2019 form on June 25, 2006, and I have been working illegally ever since at different restaurants. I had experience before coming to the U.S. and a restaurant would like to sponsor me for a permanent green card as the chef. However, since I'm illegal and did not apply for my immigration before May 1, 2001, I know that I am not eligible for 245(i) and that if I leave the country to try to interview for my green card at a U.S. consulate overseas, I will be barred from returning to this country for 10 years. So far, I have managed not to get caught or have Immigration send me any letters. Should I just tell the restaurant not to apply for me and only hope for legalization from the next president? Dear reader: Section 245(i) allows most illegal immigrants to adjust status to permanent residence without leaving the U.S. upon payment of a fine amount, presently $1,000, if they applied for a labor certification or immigrant visa petition by April 30, 2001, and were present in the U.S. on December 21, 2000. You note that you did not establish eligibility for section 245(i) benefits. In your case, however, you can inform the restaurant to begin your sponsorship for permanent residence as you are not barred from returning to the country unless you received a formal denial from U.S.C.I.S. on your status or an order on your status from an immigration judge. The J-1 status is not date specific despite the ending date on the DS-2019 form. Time for purposes of the 3 and 10-year bars begins to accrue with the expiration of allowed time on date specific statuses, but not on ones marked duration of status (D/S) such as F-1 student and J-1 exchange visitor. The restaurant should be able to sponsor you for permanent residence and you should be able to interview for your residence status at a U.S. consulate overseas. Assuming that the labor certification is approved along with the I-140 preference petition and you have no unfavorable encounters with Immigration, you should be called for interview when the priority date clears (you will have to go overseas for some period of time prior to the interview for medical examination and to perhaps obtain needed documentation), and if you are otherwise found eligible for immigration, approved and allowed to return to the U.S. with an immigrant visa.
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Copyright © 2003-2008 Alan Lee,
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