Is qualifying for adjustment of status pursuant to section 245(i) of the immigration laws still possible if the I-130 reflects a priority date after April 30, 2001?
First, adjustment of status for immigration purposes is a term that refers to the process of obtaining legal permanent resident status also known as a green card by applying for the green card from within the United States. Typically, a noncitizen of the United States applies for the green card through consular processing, appearing before a consular officer in a U.S. consulate abroad, but in certain limited situations a noncitizen can apply through the adjustment of status process from within the United States.
One of those exceptions to the rule is applying for adjustment of status pursuant to section 245(i) which states that adjustment of status is permitted if an initial petition is filed by the sunset date of either January 14, 1998, or the later sunset date of April 30, 2001. You can view a more detailed discussion of adjustment of status pursuant to 245(i) here.
With respect to the April, 2001 sunset date, an issue manifested where there were petitions received by the immigration service or USCIS after the sunset date with either no post mark or an illegible post mark. As a result, USCIS improperly identified these petitions as having been filed after the sunset date.
To cure this problem, USCIS later issued a memorandum on how these petitions with illegible or missing post marks should be handled. You can view the actual memorandum here.
The memorandum indicates that If such a petition is received by the close of business of May 3, 2001, USCIS is required to identify such a petition as being “Filed Prior to 245(i) Sunset” which serves “as notification that the application or petition appears to have been filed on or before the sunset date.”
Depending the circumstances of each case, if you or a loved one had a petition filed with USCIS listing a priority date of May 3, 2001, it may be worth exploring whether the petition was mailed within an envelope with an illegible or no post mark at all. If so, then filing of an adjustment of status application should be strongly considered, assuming the potential green card beneficiary meets all other criteria for a green card.
How do you go about determining whether the envelope containing the I-130 had an illegible post mark or no post mark at all?
The easiest and most obvious way is to check if the envelope or any sort of mailing relating to the petition was kept by either the petitioner or the beneficiary. If not, you can file a Freedom of Information Act before USCIS asking for the file of the beneficiary to see if the mailing envelope was saved in the file which should have been pursuant to guidance in the memorandum.
Wouldn’t the fact that the priority date is already listed on the I-130 filing receipt be determinative?
Not necessarily, remember that this memorandum was released on the actual April 30, 2001 sunset date and it could have been likely that such an obscure policy rule may not have circulated to all officers on time, resulting in the misapplication of an incorrect priority date to many petitions.
We can help review your filing receipts and if necessary, take the steps to file a Freedom of Information Act request to confirm whether you or your loved one may qualify for adjustment of status pursuant to section 245(i) of the immigration law.
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