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Section 245i of the LIFE Act

In recent weeks, we have discussed deferred action through DAPA and DACA.  Under these programs, individuals in the United States without valid immigration status are allowed to live and work in the U.S. temporarily without facing the risk of deportation.

For many who lack valid immigration status, these deferred programs are the best they can do.  The work permit, valid Social Security number, and deferred deportation are certainly preferable to having no legal protection whatsoever.  That said, deferred action is not a long-term solution, as it does not confer any legal immigration status and does not lead to legal permanent residency or U.S. citizenship.  Even more alarming is the tentative nature of the programs.  Deferred action could be (1) revoked at any time, (2) invalidated by the courts

Because of this uncertainty, anyone approved for deferred action should consider all legal possibilities to pursue a valid immigration status.  This article looks at one possibility:  obtaining a green card through an employer-sponsored petition.  For those without valid immigration status, this option requires two immigration laws:  Section 245i under the LIFE Act and employment-based green card sponsorship.

Consider All Options

Before discussing employment-based immigration, a point needs to be made.  Immigration law is complicated and can be intimidating.  No one should draw conclusions without detailing their full immigration history, examining all immigration documents, and consulting with experienced immigration attorneys.  Too often those with immigration issues make incorrect assumptions and fail to pursue all available options because of faulty information from family members or misunderstandings of their immigration history.  If you are unsure about your immigration history, a Freedom of Information Act request might give you the information you need to make informed decisions about your options.

Section 245i, the LIFE Act

Generally, those without valid immigration status cannot obtain status without leaving the United States The problem with that, of course, is that many who lack immigration status have accrued unlawful presence in the U.S.  The penalty for unlawful presence is a bar to re-entering the U.S.  Immigrants, then, find themselves in a catch-22 situation.  They must depart the U.S. to obtain status, but when they do they are barred from coming back into the country for up to ten years.  While this bar is waivable, many are unwilling to risk being stuck outside the U.S. while a waiver is adjudicated or longer if the waiver is denied.

A workaround to this situation comes from a provision known as the LIFE Act.  Section 245i of that law allows unauthorized immigrants to obtain permanent residency without leaving the U.S. if they had previously started the green card process before April 30, 2001.  If an individual was named as a beneficiary or a descendant of a beneficiary on an immigrant petition prior to April 30, 2001, he or she may be able to pursue permanent residency based on a later-filed petition without having to depart the United States.  This is true even if the earlier petition has been pending for a long time or if it was abandoned.

Anyone seeking to benefit from Section 245i should track down the I-797 receipt, confirming that a pre-April 30, 2001 petition was filed.  These individuals also must pay a penalty of approximately $1,000 in addition to the normal green card processing fees.  But, by allowing certain unauthorized immigrants to obtain legal permanent residency without having to depart the U.S., this provision of immigration law can be an invaluable tool.

Alien Labor Certification

Often those who lack immigration status but who have been in the United States for a long period of time make attractive candidates for employers.  These individuals often have completed higher education, possess unique job skills, and have tremendous work ethic.  Through deferred action programs that award work permits, these unauthorized immigrants often find employers who may be willing to sponsor them for a green card.

There are many avenues of employment-based permanent residency sponsorship.  By far the most common, though, is through the labor certification process.  Essentially, if an employer can prove to the satisfaction of the U.S. Department of Labor that it is unable to find a minimally qualified American worker to fill a position, it is allowed to offer the job to a foreign worker.  That worker is eventually awarded permanent residency.

Labor certification applications for higher skilled positions that involve more education and training tend to be approved more easily.  Accordingly, this path is probably better pursued after obtaining education and job experience.  Also, it is important to note that businesses must cover the expenses involved in pursuing a green card for a foreign worker.  Department of Labor regulations prohibit payment of these costs by the immigrant.

Priority Dates

A variable in the employment-based green card process is government processing times.  Each year, only a certain number of green cards are available.  These are distributed differently based on job qualifications and an immigrant’s country of origin.  Unfortunately, due to the limited number of available green cards, a backlog has developed in certain categories.  Each applicant is assigned a priority date.  The date establishes the applicant’s place in the queue, indicating when permanent residency might be granted.

Someone starting the employment-based green card process now might expect to wait anywhere from a few months to a number of years before permanent residency is approved.   The labor certification process is complicated, so anyone considering this route should consult with an experienced immigration attorney.  That said, for an unauthorized immigrant who has found a good job and is the beneficiary of Section 245i, the labor certification approach might be a real option for obtaining a long-term immigration status.

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