THE failure of the Supreme Court to overturn the lower’s court’s decision blocking the implementation of the President’s Executive Order providing Deferred Action to Parents of US Citizens and Legal Permanent Residents (DAPA) dashed the hope of many undocumented parents who wish to come out of the shadows. The implementation of DAPA would have allowed these parents to obtain a valid work authorization to allow them to work legally. The Department of Justice has just filed a Petition for Rehearing with the Supreme Court asking that a full nine member court hear the case. It would however take some time before the Supreme Court could act on this new Petition filed by the Obama Administration.
These affected parents would now have to look for other ways to legalize their stay in the country under existing laws and regulations. One avenue which they could look into is to ascertain whether or not they are covered by Section 245(i) of the Immigration and Nationality Act.
Section 245(i) of the Immigration and Nationality Act (INA) allows persons who are the beneficiaries of immigrant visa petitions or of labor certification applications filed on or before January 14, 1998, to file for adjustment of status in the U.S. despite having fallen out of status or having entered without inspection. A limited extension of Section 245(i) in 2000 covered beneficiaries of immigrant visa petitions or labor certification applications filed on or before April 30, 2001. However these beneficiaries should have been physically present in the United States on or before December 21, 2000 to qualify for 245(i).
Even if no petition has been filed directly for them, these individuals may still be covered by Section 245(i) as a derivative beneficiary child or spouse. If he or she can demonstrate that a spouse or child relationship existed at the time a qualifying petition or application was properly filed on or before the cut off dates, then they shall be considered as a grandfathered alien for purposes of Section 245(i), notwithstanding a subsequent change in the relationship with the principal alien occurs. The immigrant will still be considered as a grandfathered alien even if a child has aged out or a spouse is now divorced with the principal alien for whom the qualifying petition was filed.
A separate petition would just have to be filed for them and once a visa is available for them, they can proceed to adjust their status to that of a permanent resident alien.
Section 245(i) is one of the more significant legislation passed and the law has allowed a substantial number of individuals to get their permanent residence status. People who are covered by 245(i) must take advantage of this law so that they may be able to legalize their stay in the U.S. as an alternative to DAPA.
* * *
Atty. Dennis E. Chua is a partner in The Law Firm of Chua Tinsay and Vega (CTV), a full service law firm with offices in San Francisco, San Diego and Manila. The information presented in this article is for general information only and is not, nor intended to be, formal legal advice nor the formation of an attorney-client relationship. Call or e-mail CTV for an in-person or phone consultation to discuss your particular situation and/or how their services may be retained at (415) 495-8088; (619) 955-6277; [email protected]. The CTV Attorneys will be at Max’s Restaurant in Vallejo on October 19, 2009 from 5pm to 7pm to hold a FREE legal clinic.
