INS Instructs on What Constitutes Timely Application under Extension of 245(i)

IMMIGRATION LAW & POLICY

Obtaining Lawful Permanent Residence Status

INS INSTRUCTS ON WHAT CONSTITUTES TIMELY APPLICATION UNDER EXTENSION OF 245(i)
Immigrants' Rights Update, Vol. 15, No. 4, June 29, 2001

The Immigration and Naturalization Service has issued a memo advising its field staff on what constitutes a valid and timely postmark for the purposes of establishing whether a visa petition or labor certification application was filed in time to qualify the beneficiary to adjust status under section 245(i) of the Immigration and Nationality Act. The memo also discusses procedures for collecting application fees, as well as how field offices should handle applications that do not fall within their jurisdictions. The Apr. 26, 2001, memo was signed by William Yates, the deputy executive associate commissioner for the INS Office of Field Operations.

INA section 245(i) allows immigrants who entered the United States without inspection or who overstayed their visas to adjust their status to lawful permanent residence without having to leave the U.S., provided they pay a $1000 penalty and are beneficiaries of family- or employment-based visa petitions that were filed on or before a certain date. The 1997 "sunset" of 245(i) set that date at Jan. 14, 1998; the Legal Immigration Fairness Equity (LIFE) Act Amendments of 2000 moved the date up to Apr. 30, 2001, with the additional requirement that a principal beneficiary have been present in the U.S. on Dec. 21, 2000. The benefits of applying for adjustment under 245(i) are considerable. Ordinarily, undocumented applicants for immigrant visas are required to leave the U.S. and complete the immigration process through a consulate abroad. But persons who have resided unlawfully in the U.S. for six months or longer are barred from returning to the U.S. for from three to ten years. The temporary reinstatement of section 245(i) provided a four-month window during which individuals could file the visa petitions or labor certification applications that could qualify their beneficiaries for adjustment under section 245(i). (For an update on the possibility that section 245(i) will be extended further, see "President Asks Congress for 245(i) Extension.") Though the Apr. 30, 2001, deadline has passed, the information in the INS memo may help immigration practitioners determine whether the postmark issue and the other issues the memo addresses are of concern to their clients.

The postmark issue. The memo states that an immigrant visa petition that was physically received by the INS on or before Apr. 30, 2001, is timely filed for purposes of qualifying to adjust under section 245(i). Immigrant visa petitions postmarked on or before Apr. 30, 2001, are also considered to be timely filed. The term "postmark" means a stamp or other mark of cancellation placed on an envelope by the U.S. Postal Service (USPS).

According to the memo, INS field offices and service centers must retain evidence of the dates on which immigrant visa petitions or adjustment of status applications were mailed as part of the record of proceedings for all such petitions and applications they received from May 1, 2001, through May 3, 2001. The record of proceedings must include the original postmarked envelope or a copy of it, a private mail service invoice, or a metered envelope. All applications considered filed on or before the Apr. 30, 2001, sunset date that are received on or after May 1, 2001, must bear a stamp stating "Filed Prior to 245(i) Sunset."

All applications and petitions postmarked by the USPS that bear an Apr. 30, 2001, or earlier postmark date, regardless of the date the application or petition was received, must be considered filed on the postmark date. An application mailed to the INS in an envelope with an illegible or missing postmark must be considered postmarked on the sunset date, provided it is physically received by the INS either (1) on or before Apr. 30, 2001, or (2) during that same period of time that the INS continues to receive applications that bear an Apr. 30, 2001, postmark. The memo anticipates that period of time to extend three days beyond Apr. 30, 2001—i.e., to the close of business on May 3, 2001. Applications delivered by private mail service such as Federal Express will be treated the same as applications that have an illegible or missing postmark.

Applications and petitions received in envelopes with metered postage will be considered timely received if (1) they bear a USPS postmark of Apr. 30, 2001, or earlier, or (2) they do not bear a USPS postmark but the metered date is Apr. 30, 2001, or earlier and the envelope is received on or before May 3, 2001.

Out-of-jurisdiction filings. The memo instructs that all properly filed immigrant visa petitions and applications for adjustment of status must be accepted, without regard to jurisdiction. Applications filed in person should have been accepted through the close of business on Apr. 30, 2001; applications filed by mail should have been accepted through the close of business on May 3, 2001. Any accepted applications that are not adjudicated locally should be forwarded to the appropriate INS service center.

All INS field offices should have accepted the following filings:

all applications/petitions that local offices normally accept locally that were filed by mail or in person;
Form I-485 filed, by mail or in person, with an I-130, I-140, or I-360 petition;
Forms I-130, I-140, or I-360 filed by mail or in person (including skeletal applications), as well as the Form I-485 application package without the fingerprint fee (the fee will be requested of the applicant).

The memo instructs field offices not to accept

applications for labor certification;
applications with "improper" application fees (except applications that are missing fingerprint fees);
late legalization applications for adjustment of status; and
applications for adjustment of status that do not comply with 8 CFR section 245.2(a)(2).

Fees. According to the memo, if an applicant submitted a single check to cover the fees for multiple applications and/or petitions, and the amount the check was written for was incorrect (i.e., it did not fully cover the cost of the fees), all of the applications must be returned to the applicant and a receipt should not be issued.

If an applicant submitted multiple checks for multiple applications and paid an incorrect fee for any of the applications, the applications with the incorrect fee payments must be returned. Receipts must be issued for those applications that are accompanied by the correct fee payments.

If an applicant submitted multiple checks for multiple applications and one or more of the applications depend on a principal application, field offices should "fee in" the principal application first, then "fee in" any applications that "ride" on the principal one. If the principal application must be returned because of a problem with the fee, all riding applications must also be returned.