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Can I take advantage of Section 245(i) if I am currently outside the US, but can prove I was present in the US on December 21, 2000?
There are two methods of securing permanent residence in the US once a person is approved for immigration - consular processing and adjustment of status. Consular processing is where the applicant applies for and processes an immigrant visa at a US consulate abroad, most often in their home country. Adjustment of status is the process by which a person already in the US has their immigration status adjusted to that of a permanent resident. Individuals who have been out of status or worked without authorization are generally not eligible for adjustment of status and must process at a consulate abroad.
Section 245(i) allows a person who is in the US to adjust status upon the payment of a 00 fine, even though they normally would not have been eligible to do so because of status problems. This is an important benefit to certain people whose only option is to consular process because some individuals could be subject to a three-year or ten-year bar to reentry if they left the US due to periods of unlawful presence greater than six months.
If you are currently outside the US, you must process any visa applications at a consulate abroad, and thus, 245(i) would not apply to you in your situation. However, if you did come back to the US, you could apply for adjustment of status under Section 245(i). But, if you are able to freely reenter the US without any bars to reentry, the only reason you would want to apply under 245(i) is if you do not otherwise qualify for adjustment of status, and you prefer not to have to process at a consulate abroad, even though doing so would not create a bar to reentry for you as it does for certain individuals. If you think you might be subject to a bar to reentry, you should contact your attorney for advice.
My friend is trying to come to the US, but her visa was refused, and passport is stamped with a notation of “214(b).” What does this mean?
This notation refers to Section 214(b) of the Immigration and Nationality Act, which provides that “every alien shall be presumed to be an immigrant until he establishes to the satisfaction of the consular officer, at the time of application for admission, that he is entitled to a nonimmigrant status...” This presumption applies to all aliens, except those applying for H-1, L, or O-1 visas, and imposes on the visa applicant the burden of providing satisfactory evidence to the interviewing officer that they will return to their home country when their visa expires.
The most common basis for a visa refusal based on Section 214(b) is where the individual has not sufficiently shown they possess a residence abroad they have no intention of abandoning. Applicants can prove the existence of such residence by demonstrating they have ties abroad that would compel them to leave the U.S. at the end of their temporary stay. Some examples of sufficient ties can be a job, a house, a family, or a bank account. Individuals should note that a determination of ineligibility under Section 214(b) is not permanent. The consular officer will reconsider a case if an applicant can show further convincing evidence of sufficient ties outside the United States.
I am a Canadian citizen working in the US on a TN visa. What is the impact on my TN visa status if my employer terminates me?
Pursuant to NAFTA, a TN visa holder’s status is dependent on his or her employment with the employer noted on their I-94 card. If your employment is terminated, you are no longer eligible to remain in the US based on TN visa status. A Canadian citizen who seeks to change a US employer may have the new employer file a Form I-129 with the INS. Or, you may apply at the border for readmission to the US for the purpose of presenting documentation from a different US or foreign employer. You should note that if you are changing employers, you are not authorized to work for the new employer prior to INS approval.
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