On December 21st, 2000, President Clinton signed into law the Legal Immigration and Family Equity Act, (LIFE) which extends for a limited time, the adjustment of status provision, 245(i). Under 245(i) an immigrant, regardless of status, can file a family or an employment based petition before April 30th, 2001 and adjust their status while remaining in the US. Previously, to adjust one's status, the immigrant would have had to return to their country of origin and would immediately have been subject to a three or ten year bar from re-entering the United States. To qualify for 245(i), the immigrant must have been physically present in the US on December 21st, 2000, and must have filed their application before April 30th, 2001. For the privilege of adjusting status while remaining in the US, the INS will impose a $1,000 fine.

Some of you may remember that Section 245(i) and the payment of this fine were in effect up to the end of 1998. At that time, very few immigrants qualified for employment based sponsorship due to the stringent Department of Labor qualifications. It is the re-introduction of this fine coupled with the lightening of the Department of Labor employment requirements that will now make it possible for many immigrants to adjust through employment.

For most people, the fastest way to get a Green Card will be through employer sponsorship. Unless demand significantly slows processing times, most sponsored employees in California should have a work card and legal social security number within a year and a half to two years, if their employer begins the paperwork with the Department of Labor (DOL) in February.

In California, sponsorship of a sibling or parent by a US citizen is taking 12 - 15 years. This is why immigrants are encouraged to file for sibling sponsorship with a view to transferring your 245(i) rights to an employment-based sponsorship in the future.

Section 245(i) rights can also be transferred to those selected for the DV lottery; with successful applicants having their interview in the US instead of in Ireland.

With a divided Congress and an unknown new President, this may be the only opportunity in the near future for undocumented immigrants to obtain legal status. It is vital that anyone interested in becoming a legal resident (Green Card holder) determine their eligibility and get a family petition or a labor certification application filed as soon as possible.

If immigrants have been out of status in the US for more than 90 days but less than 180 days, they would be barred from re-entering the US for at least 3 years. If out for more than 180 days, then the bar is 10 years. Under 245(i), an eligible individual can remain in the US to obtain permanent residence (Green Card) through adjustment of status, and thus never trigger these entry bars. Once permanent residence is obtained, these entry bars no longer apply. Thus, it is particularly important that people subject to the bars do not leave the US at all until they become permanent residents.

In order to benefit from 245(i), the immigrant must prove that they were in the United States on December 21st, 2000. This evidence could include any receipts for December 21st that include the beneficiary's name.

The Section 245(i) fine (or fee) is $1,000, and is in addition to other filing fees the INS and DOL charge. In most cases, this fee does not have to be paid until the applicant files for adjustment of status with the INS. Thus, the $1,000 fine is paid following the DOL application process and at the time of filing for the Green Card with the INS. This is usually about 10 months after the paperwork has begun.

Family sponsorship depends on the status of the US resident. Legal permanent residents (Green Card holders) can petition for this spouses and unmarried sons and daughters. US citizens can petition for their spouses, married and unmarried sons and daughters, parents, brothers and sisters.

The process begins with the filing of a family based petition using Form I-130. This can be done through the Irish Immigration Pastoral Center.

In California, sponsorship of a sibling by a US citizen is taking 12 - 15 years. This is why immigrants are encouraged to file for sibling sponsorship with a view to transferring your 245(i) rights to an employment-based sponsorship in the future.

Previously, to file for employment based sponsorship, the employer had to prove that there were no US citizens or Green Card holders available to fill the position. Obviously, this was next to impossible to prove for many construction trades and so it resulted that only those with specialized skills could be sponsored, e.g. French polisher. While the application process itself is quick, some cases filed this way (now termed the 'old way') had been pending for over four years, although that wait has now shortened. In short, it was primarily used to sponsor those in computers, engineering and teaching.

Now, the Department of Labor has changed its requirements and the new and favoured application process is called Reduction in Recruitment (RIR). In order to apply under RIR, an employer must show that they have tried / made a good faith effort to fill the position with a citizen or Green Card holder and have failed in their attempts. Filing under RIR, the application process takes longer, but the processing time is much shorter with many applicants receiving their Green Cards within a year and a half.

As an employer, you need to have an established business preferably with some full time in-status employees. Some of these employees must have W-2's, not 1099's. This will be checked by the Department of Labor through your State ID number. For those on W-2's, you need to prove that you have the income to pay the prevailing wage for the sponsored employee, e.g. through quarterly tax returns (DE6).

You also need to be able to prove that you have a position to fill.

You need to have both California Federal and State Tax ID numbers.

Contractors may need to submit a copy of their contractors license, income tax returns and employment tax forms.

As a potential employee, you need to have a Bachelors Degree or two years of work experience or training in your related field. The work experience can be attained anywhere in the world, including in the US even if you were out of status at the time. Your employer with whom you gained your work experience may be checked out, even if it is in Ireland.

In some cases, a college education less than a Bachelors Degree may suffice where the person doesn't have two years experience in a related field. This will need to be investigated to ensure that it is sufficient - if not, your application may be denied.

You also need to be prepared to remain in the US for the duration of the application process that could take anything from one and a half to two years.

If your chosen profession is not listed above, please contact Celine at the Irish Immigration Pastoral Center and she will check its eligibility.

* There are other positions which should be eligible including housekeepers and heavy machine operators, but the two years work experience needs to be thoroughly demonstrated to be eligible.

If your occupation is not eligible, e.g. elder care or nannying, waitressing, you should consider having your employer file an 'old way' application to preserve your 245(i) rights for use with the DV lottery should you be chosen or for sponsorship by another employer in the future.

Occupations which require a license cannot be sponsored, unless the person holds the license and was hired with the license, e.g. nurse's aide, hairdresser, beautician.

Firstly, the employer must show that they tried to find a worker to fill the position and that they were successful in their attempts. For most jobs, DOL require recruiting over a six month period which is fulfilled by placing a minimum of four adverts over the six months. Two to three of which should be in the Chronicle or Mercury News with the remainder on web sites, trade publications, local job fairs or local papers such as the Irish Herald. A ten-day job posting at the place of employment is also required.

At the end of the recruitment, while DOL does not want to see any of the recruitment responses (i.e. resumes); they will want copies of the original advertisements with copies of the invoices, a summary of how many were hired, and why the others were rejected (i.e. no experience, no degree).

The DOL application is submitted in duplicate with one copy going to the INS. The DOL copy firstly goes to the Employment Development Department in Sacramento where it is currently taking about 60 days to process. Then it is sent to the DOL in San Francisco, where it takes a further 60 to 90 days to process. Once the application has been approved by the DOL, a Labor Certification is issued and based on the Department of Labor findings that there is a shortage of workers, the INS will then process the I-140 petition.

During this process, and indeed on receipt of Labor Certification, the immigrant is still out of status.

It must be noted that Labor Certification can be a dangerous process. While you are only now about to deal with the INS, they may have had a copy of the DOL application since day one, placing both the employer and the immigrant at some risk. Currently, the INS concentrates on using their resources to remove criminal immigrants and alien smugglers, but it is within the realms of possibility that they may use the information provided for Labor Certification to investigate a very large employer. If this investigation goes ahead, the employer may be fined up to $3,000 for the sponsored employee and $1,000 for each other undocumented immigrant hired, and the immigrants could be deported. At their January meeting with immigration attorneys, INS in San Francisco publicly stated that they do not have the resources to investigate all applications and only those filed by very large employers may be audited for immigration violations. Our best protection is going to be the large number of applications putting the system under pressure, combined with the fact that historically the odds of investigation are very low.

Upon receipt of the Labor Certification, with an immigration lawyer, the employer files an Immigrant Petition for Alien Worker (I-140) with the INS. At this point, the INS will carefully examine the employer's ability to pay the employee's wage, and often tax returns (showing a profit) and quarterly wage returns are submitted with the I-140. At this point, the employer will have to prove his ability to pay the sponsored immigrant and the immigrant's experience or education will be verified. Approval of the Immigrant Petition currently takes three to six months.

An approved I-140 means only that the INS has found the immigrant eligible to apply for a Green Card based on their job offer as certified by the DOL (Labor Certification). They still have to apply for the Green Card. At this point, the immigrant files an I-485, known as Application for Adjustment of Status and an I-485A which gives them the opportunity to pay the $1,000 fine and adjust their status in the US. The I-485 and 485A applications are mailed to Laguna Niguel, CA and approximately 30 - 90 days after filing a work permit is issued by mail. It is at this point that the immigrant's status changes to in-status / documented / legal. At this point also, the employer can legally employ the immigrant.

Once the I-485 permit has been received, the immigrant may be called for interview for their Green Card within six months. The vast majority of applicants will not be interviewed.

NOTE: All the waits listed today are based on current San Francisco waits. It is difficult to predict what effect these applications will have on these waits. They are for estimate purposes only.

In order to file an 'old way' application and thus preserve your 245(i) rights, the following information and documentation will be required.

The resources of the IIPC are limited, so we will help as many people as we possibly can. To assist us in our efforts, we would ask that you contact us to prepare your application as soon as possible and please ensure that you have all of the documentation listed below.

Also, please note that you must be completely honest in all the details given to submit this application. If you are not, then you are both endangering yourself and reducing the success of your application.

1. Name, present address, birthdate, birthplace and nationality of citizenship of immigrant
2. Name and address of Employer
3. Address where immigrant will work
4. Nature of Employer's Business Activity
5. Job Title
6. Work Schedule (am & pm)
7. Rate of Pay (basic & overtime)
8. Job Description
9. Federal Employer Tax ID number
10. State Employer Tax ID number
11. Number of employees for whom employer issued W-2's in 2000 (not counting 1099's!!!)
12. Title of Person to be immigrant's immediate supervisor
13. Number of Employees immigrant will supervise (if any)
14. Names and Addresses of Secondary Schools, Colleges and Universities attended, courses studied, dates of duration of study and Degrees or Certificates received
15. Details of Licenses (if any, other than Driver's License)
16. Work Experience in past 3 yrs or before if related to job for which being sponsored:
    - Name and Address of employer
    - Name of job
    - Date started and left
    - Kind of business
    - Details of duties, including use of tools, machines & equipment
    - No. of hours per week
    

The approximate attorney cost to file a Reduction in Recruitment application is $4,000 - $6,000 depending on your attorney. In addition there are expenses of $460 INS & DOL fees, $1,000 fine and $200 - $300 for advertisements.

If you are organised with your materials and information, you may be able to lower the attorney costs by reducing the amount of time they need to spend on your application.

Please take some care in choosing your attorney. You will need to have an attorney who is experienced in immigration law preferably someone who is a certified specialist or works with a certified specialist by the California Bar.

We, at the Irish Immigration Pastoral Center, encourage all of you who are eligible to submit, through the Pastoral Center, the initial application. This application will preserve your 245(i) rights indefinitely.

Should your or your employer's situation change, the application can be withdrawn and your rights still preserved.

It is possible to submit the second and final application (RIR) with a different employer.

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