For employers seeking to legalize undocumented workers, the avenues for relief in the present immigration climate are limited, but one path employers should be aware of is legalization by way of Section 245(i) relief.  Extended through April 30, 2001 by the Life Act of 2000, Section 245(i) of the Immigration & Nationality Act provides that an undocumented alien may, nevertheless, be granted leave to adjust status to permanent residency if three basic criteria are met: (1) the alien or sponsor filed a qualifying immigrant petition or application for permanent labor certification on or before April 30, 2001, (2) the petition or labor certification was “properly filed” and  “approvable when filed”,  i.e. there is a filing receipt and the filing itself was bonafide and not frivolous, and (3) the principal alien was physically present in the United States on December 21, 2000, the date on which the Life Act came into force. Significantly, not only can principal aliens benefit from Section 245(i) adjustment of status relief but spouses and children of principal aliens can also benefit.  As such, in the course of evaluating whether an employee can be legalized it is important to assess not only whether the employee, himself, had an immigrant petition or labor certification filed on his behalf, on or before April 30, 2001, but also whether the alien’s spouse or parent may have met the filing requirement.

Why has 245(i) been so important?

As some employers have learned the hard way, getting your undocumented alien’s application for permanent labor certification approved does not make it legal  for him or her to work in the U.S. It only represents the first step of a three step process toward permanent residency–the second step being the visa application, and the third step being (when a visa is available) adjustment of status. It is usually at this third step that everything is tripped up because a person in undocumented status generally cannot adjust to a documented status even if he or she meets all the requirements  for permanent residency. This is where Section 245(i) comes in: An undocumented employee, who is otherwise qualified for permanent residency, but for his or her undocumented status, would be allowed to adjust status to permanent resident under Section 245(i) (which also requires the alien to pay a $1,000.00 fee/penalty).  For employers, Section 245(i) has been a god-send provision which should be extended beyond the April 30, 2001 drop dead date. We have heard speculation that an O’Bama administration may be receptive to extending Section 245(i) relief to a new generation of potential immigrants. For employers currently held between the rock of insovency and the hard place of being prosecuted for immigration violations, let us hope that this is the case.

As readers may recall, over the Summer, the U.S. Attorney General extended temporary protected status (TPS) for a number of nationals, from El Salvador, Nicaragua, and Honduras. The deadlines for applying for TPS are fast approaching. For readers we provide below a link to a practice pointers notice recently issued by the Vermont Service Center which will be processing TPS applications for New York and other Eastern Seaboard states.        

Vermont Service Center Pointers on Applying for TPS

The U.S. Department of Education has launched a website designed to help non-English speakers learn English.  For readers, please consult the Link Below for more information. 

website-for-learning-english.pdf

The e-verify program, which allegedly provides employers the means to electronically verify the work authorization of potential hires will be made mandatory for all Federal contractors and subcontractors starting January 15, 2009. For readers, we have provided below a link to the FAQ recently issued by the Department of Homeland Security (U.S. Citizenship and Immigration Services) about this new requirement: 

E-Verify Question and Answer

For countries which participate in the Visa Waiver Program–a special program that allows citizens/nationals  of certain participanting countries to enter the U.S. for a period of up to 90 days without a visa, a new system of pre-travel, electronic registration has been implemented that is scheduled to become mandatory after January 12, 2009. The ESTA program requires that foreign nationals apply for electronic travel authorization in advance of their journeys to the U.S. through a website at the following URL: https://esta.cbp.dhs.gov     ¼/p>