Vermont Service Center Congressional Liaison Comments on 245(I) Versus "Grandfathering," Temporary Protected Status, and Waivers for J-1 Visa Holders

In light of the fact that it is unlikely Congress will resurrect Section 245(i) of the Immigration & Nationality Act, Donna K. Kane of the INS Vermont Service Center discusses the option of "grandfathering." The term "grandfathering" refers to the practice by employers of using a pre-existing approved labor certification application for an employee, other than the one identified in the application. If certain conditions are met, an individual who entered without inspection or overstayed the duration of authorized stay by more than 180 days could be eligible to apply for adjustment of status through the INS by paying a penalty fee of $1000. Ms. Kane explains what are the conditions to grandfather an employee and other important issues, including when the two-year foreign residence applies to exchange visitors and how to obtain a waiver. Importantly, the summary does not point out that foreign medical graduates who are subject to the two-year foreign residence requirement are not eligible for a waiver based on a no-objection statement from their government. They are, however, eligible for a waiver based on a recommendation from an interested government agency, or upon establishing that their U.S. citizen or permanent resident spouse, parent, or child would suffer exceptional hardship if they fulfilled the two-year residence requirement, or if they would suffer persecution in their home country, or if they receive a recommendation from a State Department of Health based upon their commitment to provide primary care in an area that is recognized as medically underserved. For a copy of the VSC Congressional Newsletter contact us at imminfo@gtlaw.com

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