If you have a question on immigration matters, write Ask-visalaw@visalaw.com. We can't answer every question, but if you ask a short question that can be answered concisely, we'll consider it for publication. Remember, these questions are only intended to provide general information. You should consult with your own attorney before acting on information you see here.

1) QUESTION:

I have an approved EB-2 petition. I am an Indian citizen; however, I was born in Oman. My parents moved there for work and lived there as non-immigrant workers. Do you think this would qualify me to use Oman as my country of chargeability? The lawyers that we used say that this will not work because the officers will request proof of my parents' intent to live in Oman, not just work there temporarily. What do you think?

ANSWER:

I think your lawyers have the rule backwards. The primary rule of chargeability for the Visa Bulletin is that a foreign national is charged to their country of birth. The country of citizenship is almost always irrelevant when it comes to determining the country of chargeability.

Now there are some exceptions to this rule that would allow someone to use a different country of chargeability if visa availability was backlogged for their country of birth. These rules are a bit complicated, and it is recommended that you consult with an immigration lawyer before relying on one of these exceptions, but the basic rules are:

a) A spouse's country of birth can be used as the foreign national's country of chargeability where the foreign national is accompanying or following to join the spouse, if necessary to prevent the separation of the spouses;

b) A parent's country of birth can be used as the foreign national child's country of chargeability where the foreign national child is accompanying or following to join the parent, if necessary to prevent the separation of the child from the parent;

c) Someone who was born in the US (who did not receive US citizenship through their birth or abandoned their US citizenship) would be chargeable to their country of citizenship. If they do not have citizenship in any country, they would be charged to their last country of residence;

- or -

d) Someone who was born in a country in which neither of the person's parents was born, and in which neither parents had a residence at the time of the person's birth, may be charged to the country of birth of either parent.

So, you see, someone born in Oman would be chargeable to Oman for purposes of visa availability.

The reason why I say that your lawyers have the rule backwards is because, while exception "d" listed above could potentially apply to you, you would only need to address your parents' residence in Oman if you were trying to use the exception to show that you should be charged to India. Otherwise, being charged to Oman would be the "default" position.

If you are unable to provide an Omani birth certificate showing you were born in Oman, then you have a separate problem.

2) QUESTION:

Can someone still apply for adjustment of status under 245(i)?

ANSWER:

Yes. Someone can still apply for Adjustment of Status, also known as a green card application, under Section 245(i) of the Immigration and Nationality Act, if they are grandfathered in to eligibility.

To be eligible for 245(i) the applicant must have been the beneficiary of an application for Labor Certification filed with the Department of Labor OR an immigrant petition filed with USCIS (or with INS) on or before April 30, 2001. Beneficiaries of petitions or applications dated January 15, 1998 or later must also show that they were physically present in the US on December 21, 2000.

So, if someone had an employer or family member that filed a qualifying application or petition on their behalf on or before April 30, 2001, they might be eligible to benefit from the 245(i) "amnesty". Also, some people are grandfathered under 245(i) where a qualifying application or petition was filed for their spouse or parent, as long as the person would have been able to qualify as a derivative beneficiary of that petition or application at the time it was filed or before April 30, 2001.

Furthermore, someone can be grandfathered for 245(i) even if the qualifying petition or application was eventually denied, as long as the petition or application was approvable at the time it was filed.

Finally, if someone is not grandfathered under 245(i), but they are applying for a green card as the derivative beneficiary of someone who is grandfathered, then they may be able to apply under 245(i) as a derivative of their spouse or parent.

But this is a fairly complicated area of the law, so if you feel that you might be eligible to apply for a green card under INA section 245(i), you should consult with an attorney before filing an application for adjustment to make sure that you are eligible for the green card and that you have the documentation necessary to prove your eligibility.

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