< back
INS RELEASES FURTHER GUIDANCE ON 245i SUNSET
Last April, the INS issued guidance dealing with section 245(i), explaining generally how grandfathering under the section will work. See http://www.visalaw.com/99apr/38apr99.html. In June, the Service issued more rules on the section, these dealing specifically with grandfathering based on employment based applications. 
There are two types of applications that may serve to grandfather someone under 245(i). The first is a labor certification application filed with the Department of Labor. For such an application to be used for grandfathering, the applicant must prove that it was properly filed with the DOL. Here, properly filed means that the application was fully completed and meets all the regulatory requirements established by the DOL for such applications. Proof of proper filing may be demonstrated by a receipt from the DOL or a statement from the DOL that the labor certification was submitted to the appropriate state agency before January 15, 1998. 
The second type of application that may be used to grandfather under 245(i) is an employment based immigrant petition filed with the INS before January 15, 1998. This application must be "approvable when filed." Applications that were granted are approvable when filed. Certain applications that were denied can be used to grandfather. If the denial was based on a change in circumstances beyond the alien’s control, such as the prospective employer going out of business or the petitioning spouses death, the application is still approvable when filed. Applications that were denied on the merits, either because it was fraudulent, meritless, or where the employment simply could not be the basis for a visa, cannot be used to grandfather. Withdrawn immigrant petitions may be used to grandfather, depending on why the application was withdrawn. If withdrawn because the applicant was sure it would be denied on the merits, it cannot be used to grandfather. If withdrawn because the employer experiences business reversals and no longer needs the worker, the petition can be used to grandfather. 
Section 245(i) includes spouses and children of primary applicants as beneficiaries, thus, if there is a properly filed labor certification with the DOL or employment based immigrant visa petition with the INS, spouses and children are grandfathered. These people are still grandfathered even if the spouses were divorced or the child has since reached the age of 21. Spouses and children obtained after January 15, 1998 but before the applicant adjusts status are also grandfathered. This provision would apply to marriages and births occurring after January 15, 1998.
The INS now will begin to process adjustment of status applications based on the applicant’s claim that an employer filed a Labor Application for Alien Employment Certification (Form ETA Parts A and B) before January 15, 1998. Processing of these petitions had been on hold pending the release of this memorandum.