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Section 245(i) and Proving Physical Presence

On Behalf of | May 1, 2014 | Adjustment of Status, Green Cards |

For individuals seeking to pursue permanent residence in the United States, the eligibility requirements of Section 245a of the Immigration and Nationality Act (“INA”) must normally be satisfied. While Immediate Relatives of United States Citizens generally enjoy broader protection than most other types of applicants, any irregularity or defect could potentially complicate and possibly disqualify an individual from adjustment of status. Typical problems include but are not limited to:

· Entry without inspection (EWI)

· Overstaying one’s authorized period of stay

· Violating the terms and conditions of one’s status

· Working without authorization

When an individual presents these types of circumstances, he or she may need to explore whether he/she is covered under 245(i) in order to have any viable chance of adjusting. Section 245(i) is a provision of the Legal Immigration Family Equity Act (“LIFE Act”) that imposes a $1000 penalty fee but which relaxes many of the stringent requirements of Section 245(a). Although 245(i) expired on April 30, 2001, it still applies to individuals provided they can demonstrate they were the beneficiaries of certain petitions (ie., a petition for alien relative called an I-130 or “approvable when filed” labor certification application) filed on or before April 30, 2001. One often-overlooked but fundamental requirement of 245(i) is that the applicant also demonstrate physical presence in the United States on December 21, 2000 if the petition was filed after January 14, 1998 but before April 30, 2001.

What documents are acceptable forms of proof?

Although a single document could theoretically prove physical presence, it is recommended that as many documents as possible be assembled. Among the many types of documents out there, any type of official governmental documentation issued by a federal, state, or local agency will usually hold more weight over other forms. And amongst governmental documentation, “Service-issued documentation” will ordinarily be most probative. Examples of service documentation include photocopies of Form I-94, form I-862, Form I-122, Form I-221, and any application or petition for a benefit under the Act filed by or on behalf of the applicant on or prior to the required date that establishes physical presence, or a fee receipt issued by the Service.

If Service documentation is not available, the applicant should try to furnish government-issued documentation. According to guidance from USCIS as well as the Code of Federal Regulations, such documentation should be dated at the time of issuance (not later than December 21, 2000) and must have some type of authenticating sign or seal. Examples would include:

o State driver’s license or I.D. card

o County/municipal hospital records

o Public school or college transcripts

o Income tax records

o Certified copies of any federal, state, or local governmental records created on or prior to December 21, 2000, which show that the applicant was present in the US at the time, and establishes that the applicant sought in the applicant’s behalf, a benefit from the agency; or that establishes that the applicant submitted an income tax return, property tax payment, or similar submission or payment to the agency keeping such record(s).

o A transcript from a private or religious school that is registered with, or approved or licensed by, appropriate State or local authorities, accredited by the State or regional accrediting body, or by the appropriate private school association, or maintains enrollment records in accordance with State or local requirements or standards.

In the absence of governmental documents, USCIS will evaluate non-governmental proof, but such secondary documentation may not be accorded as much weight, obviously, as the former. Examples might include dated, certified copies of :

· School records

o Rental receipts

o Bank statements

o Utility bill receipts

o Other dated receipts

o Employment records, such as pay stubs

o Dated credit card statements

While the adjudicator will consider all submitted evidence, he or she may accord different weight to different documents. The evaluation is discretionary in nature, so the applicant should exercise due diligence in looking for the appropriate documentation prior to filing the application. An immigration attorney who handles these types of matters on a regular basis may be a valuable source of insight as to whether the documents which will be submitted will pass muster.

We hope that you have enjoyed this article and learned at least one new thing or tip that you may not have known. To keep informed about the latest developments in immigration law, please subscribe to our blog feed by clicking on the “Subscribe To This Blog’s Feed” button on the right. It is important to understand that the above is only general information and not legal advice. The law is extremely fact and circumstance sensitive. For an individual legal analysis of your specific legal case, please complete the “Case Evaluation” box to the right of the screen to get in touch with one of our attorneys.