check with ur lawyer about 24i and 245k
245i and k might allow u to pay a fine n do this if u were present in the US around 2001.
read this article from shusterman, maybe this is what ur lawyer is doing....
*** Related Pages ***Section 245(i) AudioAILA's Section 245(i) FAQ (En Espanol)Immigration Amendments Passed 12-15-00LIFE Immigration Amendments: AILA's Draft SummaryComplete Text Of New Immigration Amendments
Q1. I've heard that a new law was recently passed by Congress which would reauthorize section 245(i). What is section 245(i)? (§ = Section)
A. §245 of the immigration law allows persons to become permanent residents without leaving the U.S. through a process called "adjustment of status". Generally, persons who entered the U.S. without being inspected by an INS officer, who have ever been unlawfully employed in the U.S. or who failed to always maintain lawful status in the U.S. are barred from adjusting their status in the U.S. (There are certain exceptions to the last two bars for "immediate relatives" of U.S. citizens and for certain EB applicants.)
§245(i) was first added to the law in 1994 to allow persons who qualify for green cards, but not for adjustment of status, to be able to adjust their status in the U.S. upon payment of a fine (currently $1,000). Congress phased §245(i) out of the law on January 14, 1998. However, persons who had already qualified under the law as of that date were "grandfathered" into the benefits of §245(i) for the rest of their lives. The problem was that hundreds of thousands of otherwise qualified persons who missed the January 14, 1998 deadline cannot adjust status in the U.S., and cannot return to their countries to obtain green cards without being subject to either a three or a ten-year bar from returning to the U.S. These persons (You may be one of them!) have been in a state of legal limbo since 1998.
Congress gave a holiday present to hundreds of thousands of potential immigrants on December 15, 2000 when they extended the grandfathering date of §245(i) to April 30, 2001. Not only does this extend the benefits of §245(i) to persons who had labor certifications or visa petitions (I-130, I-140 or I-360) filed on their behalf between 1998 and 2000, but it gives persons over four months AFTER the passage of the law to qualify for the benefits of §245(i).
Q2. What must I do to qualify for §245(i)?
A. A person with a labor certification or a visa petition filed on their behalf on or before January 14, 1998 is qualified for the benefits of §245(i). Under the new law, a person who has a labor certification or visa petition filed on their behalf after January 14, 1998, but on or before April 30, 2001, is also qualified for the benefits of §245(i) but only if they were physically present in the U.S. on the date of enactment of the new law (December 21, 2000).
Q3. Does this mean that I must have been lawfully in the U.S. on December 21, 2000?
A. No, merely that you were present, legally or illegally, in the U.S. on that date.
Q4. What exactly do I have to do to qualify for the benefits of §245(i)
A. You must have either an employer or a relative submit a labor certification or a visa petition on your behalf by April 30, 2001. It is not necessary that the Labor Department or the INS approve your application or petition by this date, only that it be filed.
For example, there is a tremendous labor shortage in the U.S. in a wide variety of occupations. Whether you work as a nanny or a rocket scientist, a nurse or a professor, a mechanic or an engineer, if your employer (or prospective employer) is unable to find a U.S. worker to fill your job, you may be eligible for labor certification.
Also, if your brother, sister, father, mother, adult son or daughter, or your spouse is a citizen, or perhaps even a permanent resident, they should immediately submit a petition on your behalf, no matter what the waiting time is in that particular category. The purpose of filing such a petition is to qualify you for the benefits of §245(i).
U.S. citizens may petition for their spouses, married or unmarried sons and daughters of any age, parents, and brothers and sisters. Permanent residents may petition for their spouses and their unmarried sons and daughters of any age (This includes sons and daughters who are divorced or widowed).
Q5. Do I have to adjust status in the same category that I was petitioned for?
A. No. Let's assume that your brother (or your spouse's brother) has recently naturalized. The published waiting time for a sibling petition varies from 12 to over 20 years on paper, and the actual waiting time is even longer. Still, you should have him petition for you and your spouse and children immediately. The filing of a simple petition will make your whole family eligible for the benefits of §245(i). You are not obligated to wait 12 to 20 years to obtain a green card. If you qualify for a green card through employment, through another relative, or even through the green card lottery, because you are qualified under §245(i), you will be able adjust for status for permanent residence much more quickly. However, if you adjust your status based on a visa petition which was not the original basis for your being eligible to adjust status under §245(i), you must use your new priority date.
Q6. If my wife's relative files a petition for her on or before April 30, 2001, can we both qualify for permanent residence based upon a labor certification and visa petition filed after that date? How about my children? Once they turn 21 years of age, they won't be entitled to any benefits based on this petition, will they?
A. You and your children are considered to be "derivative beneficiaries" of the petition filed by your wife's relative on her behalf. This entitles not only your wife, but you and your children to the benefits of §245(i). If later on, you qualify for a green card based upon your job, a future job, a petition filed by one of your relatives after April 30, 2001, or if you win the green card lottery no matter how far in the future, you and your family can still adjust status under §245(i).
Even your children who "age-out" by turning 21, or by marrying, will still be entitled to the benefits of §245(i) if they were "derivative beneficiaries" of a visa petition filed by your wife's relative on or before April 30, 2001.
Conversely, if you and your wife divorce, not only will you and your children be eligible for the benefits of §245(i), but so will each of your new spouses and children, as long as the new relationships are in place prior to the time you or your ex-wife adjust status.
An INS Memorandum, dated June 10, 1999, provides excellent guidance in such situations.
Q7. What happens if my labor certification is not approved? Or if the employer goes bankrupt or withdraws my labor certification or visa petition? What happens if my relative dies? Am I still eligible under §245(i)?
A. Yes, the INS utilizes an "alien based" interpretation of §245(i). If a labor certification or visa petition was "approvable when filed", you are entitled to the benefits of §245(i) even if the application/petition was never approved, was withdrawn, or the petitioner ceases to exist.
Filings that are deficient because they were submitted without fee, or because they were fraudulent or without any basis in law or fact, are not considered to be "approvable when filed" and confer no benefits under §245(i) .
Q8. If I qualify for the benefits of §245(i), leave the U.S. and return at a later time, will I still be entitled to adjust status in the U.S. in the future?
A. Yes. However, if you have been "unlawfully present" (a legal term of art - be sure to consult with an experienced immigration attorney) in the U.S. for 180 days or more, you may be subject to either a three or a ten-year bar to returning to the U.S. If this applies to you, DO NOT TRAVEL OUTSIDE THE U.S. UNTIL YOU BECOME A PERMANENT RESIDENT.
Q9. If I qualify for benefits under §245(i), when will my eligibility for being able to adjust status in the U.S. expire?
A. Never. Once you qualify for benefits under §245(i), your eligibility never expires. Of course, you must still qualify (through a relative, a job or the green card lottery) when you apply for adjustment of status. And you must be admissible to the U.S. If you are a criminal, have committed immigration fraud, etc., you may be inadmissible.
Q10. I want to qualify for the benefits of §245(i). What should I do?
A. You need to move quickly to meet the April 30, 2001 deadline, and you can't afford to make any mistakes. If the INS or the Labor Department returns your application because it was incomplete or because you made a mistake in completing the forms, you may lose your last best chance to qualify for benefits under §245(i) and to legalize your status in the U.S
plus this is the uscis memo clarifying 245i
http://www.shusterman.com/pdf/245i-30905.pdf
and this is about 245k
Ask Mr. Shusterman - Resubmitting an I-485 Under Section 245(k)
During the past two years, the USCIS has denied hundreds, perhaps thousands, of employment-based Applications for Adjustment of Status (Form I-485) on grounds that could have been overcome if the applicants were permitted to resubmit their applications.
Persons who are "immediate relatives" of U.S. citizens may resubmit their I-485s as many times as they wish. So may persons who qualify under section 245(i). See
http://shusterman.com/245i-faq.html
With regard to employment-based I-485s, there is no doubt that persons in valid nonimmigrant status may also submit multiple I-485s. But there are a myriad of restrictions on maintaining valid nonimmigrant status once a person has submitted form I-485.
In 1997, Congress amended the law to allow certain persons not currently in legal status to apply for employment-based adjustment of status under section 245(k). Section 245(k) reads as follows:
"An alien who is eligible to receive an immigrant visa under paragraph (1), (2), or (3) of section 203(b) (or, in the case of an alien who is an immigrant described in section 101(a)(27)(C) , under section 203(b)(4) ) may adjust status pursuant to subsection (a) and notwithstanding subsection (c)(2), (c)(7), and (c)(8), if--
(1) the alien, on the date of filing an application for adjustment of status, is present in the United States pursuant to a lawful admission;
(2) the alien, subsequent to such lawful admission has not, for an aggregate period exceeding 180 days--
(A) failed to maintain, continuously, a lawful status;
(B) engaged in unauthorized employment; or
(C) otherwise violated the terms and conditions of the alien's admission."
Section 245(k) would seem to permit a person to resubmit an application for adjustment of status as long as (1) he does so within 180 days of his I-485 being denied plus (2) any time that he was not in lawful status or engaged in unauthorized employment prior to filing his initial I-485 must be added to the 180 days.
At least, this was USCIS' position prior to 2005. And it makes sense. The status requires that a person maintain "a lawful status". The period of time that a person is waiting for the USCIS to adjudicate form I-485 is clearly lawful since the person is permitted to reside in, and be employed in, the U.S.
Sometime in 2005, the USCIS started to deny resubmitted I-485s filed by registered nurses on the ground that the period of time that the RN's previous I-485 was pending was a "period of stay authorized by the Attorney General", but not a "lawful status". Huh? See
http://www.shusterman.com/sep05.html#6
This seems like a bit of sophistry on the government's part.
First, the applicant has no control over how long the government takes to adjudicate an application for adjustment of status. If the government decided on the application negatively within 180 days, the applicant clearly could reapply under section 245(k). However, since the USCIS seldom decides such applications within this timeframe, they then argue that, in effect, their slowness bars applicants from refiling under section 245(k)! This seems a wee bit self-serving on USCIS' part. Delay adjudicating the I-485 for months or even years, and then penalize the applicant for the government's delay.
RNs have been disproportionately affected by this interpretation because there is no general nonimmigrant visa category that they qualify for. Did we mention that the USCIS would have no problem with RNs refiling their I-485 if they maintain their valid nonimmigrant status? Unfortunately, it is nearly impossible for an RN to maintain a nonimmigrant status during the pendency of the I-485.
The USCIS decided back in 2000 that a pending application for adjustment of status tolls a person's "unlawful presence" in the U.S. for purposes of avoiding the three and ten-year bars. Yes, somehow, the USCIS makes a distinction between a person being lawfully present in the U.S. and being in "a lawful status" under section 245(k).
The bottom line, in our opinion, is that the USCIS is attempting to amend section 245(k) by adding a modifier: the person must be in "a lawful (nonimmigrant) status". The word "nonimmigrant" does not appear in the statute. The problem for the USCIS is that it is not part of the legislative branch of the government, and therefore is not able to amend laws written by Congress. The USCIS is part of the executive branch and its duty is to enforce the law. Trust me on this. It's on the naturalization exam.
Ten years after the President signed the law, the USCIS has yet to issue regulations interpreting section 245(k). They have not even issued a precedent decision justifying their interpretation, or written a policy memorandum on this subject.
However, this does not prevent the agency from issuing I-485 denials based upon this dubious logic. And we predict that given the 300,000 persons who submitted I-485s from mid-July to mid-August this year coupled with the retrogression of the EB numbers in the October 2007 Visa Bulletin, a lot of persons besides RNs will be negatively affected by USCIS' overly restrictive interpretation of section 245(k) in the future.
We hope that if the reasons for the denial can be cured, one intrepid applicant will seek to resubmit his or her I-485 and, thereby, challenge the government's argument that the law bars him from doing so. A favorable ruling would benefit not just the applicant, but thousands of other would-be immigrants.
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PLZ REM I DONT KNOW IF THIS APPLIES TO UR CASE OR NOT. PLEASE CLARIFY THESE ISSUES WITH A LAWYER ASAP AS BIGBANG HAS SUGGESTED.
