Properly Filed and Approvable 245(i) Application

Posted on 4月 25, 2006 by Warren Wen | Category: Immigration

What Does Properly Filed and Approvable Application Mean in Section 245(i)?

Undoubtedly, immigration reform has been the hottest issue in the past couple of weeks. Though the new Immigration Reform Act failed to pass in the Senate, it does not necessarily mean that the immigration reform has come to its dead end.  In fact, just as we have mentioned before, a lot of illegal immigrants could still adjust their status in the U.S. under Section 245(i), and not wait for a future amnesty.

When illegal immigrants try to confirm whether they are grandfathered under Section 245(i) or not, they should first check if their immigration visa petition or application for the labor certification were filed before April 30, 2001. Then, they should carefully review whether their applications were properly filed and approvable at the time of filing. Recently, a client visited our office and wished to attain our service for the labor certification because he thought he was grandfathered by Section 245(i).  However, he had to hear the heart-sinking news that he may not be grandfathered by Section 245(i) because his former attorney did not file his labor certification properly in the first place.

Here is what happened.  Mr. Lee entered the United States legally in 1998, but became illegal because he overstayed his visa.  However, he was able to find a sponsor later and filed an application for the labor certification sometime before April 30, 2001.  According to Section 245(i), he would be grandfathered, and hence be able to adjust his status in the U.S. legally without leaving the country.  But when we reviewed his case more carefully, we found that his former attorney did not correctly fill out the application for the labor certification. To make the situation worse, his attorney had not responded in timely manner when the Department of Labor requested him to supply more documents with corrections.  As a result, the application for labor certification was denied. Now, Mr. Lee wants to apply for green card, thinking that he is grandfathered by Section 245(i), but there is a high possibility that he may not be protected by this section.

According to the pertinent memo of Section 245(i), the qualifying immigrant visa petition or the qualifying application for labor certification should be “properly filed” and “approvable when filed”. That is to say, when filing an application, the application should be properly filed, meritorious in fact, and non-frivolous. So, there are two requirements needed to be met when filing a petition or an application: one is being complete, the other is being true. These two should be considered when applying or petitioning for green card under Section 245(i).  In fact, these two points should always be considered when filing applications or petitions for any immigration or non-immigration visa.  For a client or an inexperienced attorney, it is easy to make mistakes as Mr. Lee’s former attorney did. When an immigration attorney is helping an alien apply for an immigration visa, he is doing more than just filling out some forms and preparing some documents; he is also making sure that the application is complete, in accordance with legal requirements, and that he replied to all correspondences from the USCIS or the Department of Labor accurately and promptly. People should keep in mind that an experienced attorney can not only help the applicants with their cases, but also promote the approvable rate of their petition or application. Therefore, searching for an experienced attorney to handle the petition or application is highly recommended.

This article is only for your reference. Please do not apply mechanically to any exact cases. You are welcome to consult our attorneys at Liu & Associates, P.C. For contact information, please click here.