Substitution of Aliens and Sec. 245-i
I received a question regarding substitution of an alien. In the fact pattern, the original alien was in the US and the application for labor certification was filed no later than April 30, 2001. The question is whether a new alien who arrived in the US after that date can be substituted and benefit from the same application. The answer is "Yes", and I would add the following comments: (1) Any alien who had the same qualifications at the time of the original filing qualifies for substitution. (2) For substitution, it does not matter whether the alien was or is legal or illegal or whether the alien was or is in the U.S. at any time. (2) A substituted alien does not benefit from the 245-i status of the original alien. Only the original alien can apply for adjustment of status under 245-i protection. (3) The priority date for a labor certification is the original filing date, even if a new alien is substituted. (4) It also does not matter if the alien was in the USat the time the application was filed. For example, an alien who was not in the US in April 2001, but who arrived some time after April 2001 illegally or who then became illegal can benefit from 245-i as well as substitution. (5) If the new alien is not protected by 245-i and has been illegal in the US more than 180 days, he or she can be substituted but cannot adjust status. In conclusion, 245-i and substitution are two different laws, and aliens need to qualify for each law independently and separately.