Immigration and Nationality Act (INA) section 245(i) refers to a section of immigration law which allows certain individuals disqualified for applying for adjustment of status to apply for lawful permanent residence from within the United States provided that they pay a $1,000 penalty.
A threshold requirement to apply for adjustment of status is that the applicant must satisfy the inspection and admission requirements of the INA. These requirements refer to the applicant entering the U.S. through a lawful port of entry with a valid visa or travel document. Moreover, in order to adjust status, the applicant cannot have overstayed their visa, worked without authorization, or have been in an unlawful status at the time they seek to adjust status. INA 245(i) provides a legal mechanism to sidestep these requirements, allowing individuals to adjust status when the ordinarily would be unable to do so.
History of 245(i)
Congress originally enacted section 245(i) in 1994. It provided an avenue for certain non-citizens to apply for adjustment of status even though they may have not been lawfully admitted to the United States, may have engaged in unauthorized employment, or may have been in an unlawful status at the time of their application – all factors would ordinarily prohibit those individuals from successfully adjusting status within the United States.
Section 245(i) originally only allowed qualifying non-citizens to adjust status if they had immigrant petitions that were submitted and approved by October 1, 1997. The Legal Immigration Family Equity Act (LIFE Act) extended this filing deadline, and grandfathered individuals who had an immigrant visa petition or labor certification application filed on their behalf on or before April 30, 2001.
Benefits of 245(i) Adjustment
The primary benefit of 245(i) adjustment is the fact that it allows an otherwise ineligible non-citizen to adjust status within the United States at the cost of paying a $1,000 penalty. As noted above, individuals have not been lawfully admitted to the United States, have engaged in unauthorized employment, or have been in an unlawful status at the time of their application are generally ineligible to adjust status within the United States.
Non-citizens who seek to obtain lawful permanent residence but who have committed one or more of the aforementioned immigration law violations would ordinarily be forced to return to their home countries and proceed with consular processing. This departure from the United States, especially in the case of an individual who unlawfully overstayed, could trigger an unlawful presence bar, further complicating their immigration situation and requiring an unlawful presence waiver.
The ability to adjust status under section 245(i) obviated the need for an unlawful presence waiver, since the non-citizen would not be required to depart the United States and thus, would not trigger an unlawful presence bar.
Requirements for 245(i) Adjustment
You may be eligible to receive a Green Card through section 245(i) if you:
Are the beneficiary of a qualified immigrant petition (Form I-130 or I-140) or application for labor certification (Form ETA-750) filed on or before April 30, 2001;
Were physically present in the United States on Dec. 21, 2000, if you are the principal beneficiary and the petition was filed between Jan. 15, 1998, and April 30, 2001;
Are currently the beneficiary of a qualifying immigrant petition (either the original Form I-130 or I-140 through which you are grandfathered or through a subsequently filed immigrant petition) or an application for labor certification;
Properly file Form I-485, Application to Register Permanent Residence or Adjust Status, and Form I-485 Supplement A;
Pay the $1,000 fee (unless exempt);
Are physically present in the United States at the time you file Form I-485 and Supplement A;
Have a visa immediately available to you;
Are admissible to the United States or eligible for a waiver of inadmissibility or other form of relief; and
Warrant the favorable exercise of discretion (this means the positive factors in your case outweigh the negative factors).
Depending on the circumstances, a spouse or child of a grandfathered individual may also be a grandfathered or may be eligible to adjust status as a dependent under section 245(i) of the INA.
Is Section 245(i) Still Relevant Today?
Yes. Despite the fact that the filing deadline lapsed over twenty years ago, there are still individuals who qualify for protection under section 245(i). Some of these individuals qualify by virtue that they have an approved I-130 but do not yet have a visa immediately available for their use. Other individuals may qualify by virtue of the grandfathering provisions of 245(i).
Juan’s mother filed an I-130 petition for him on January 1, 2001, before the April 30, 2001 deadline, when Juan was 25 years old. Juan is a Mexican citizen. Given the country quota cap for Mexico, the current visa bulletin shows that USCIS is currently accepting filing of family sponsored adjustment of status applications for August of 2000. Juan currently does not have a visa immediately available in order to apply for adjustment under 245(i). However, Juan should be able to pursue adjustment of status under 245(i) once his priority date becomes current and a visa available.
Glenda and her father unlawfully entered the United States in 1995. Glenda’s uncle filed a petition for her father before the April 30, 2001 deadline, when Glenda was ten (10) years old. Both Glenda and her father are grandfathered under 245(i) – Glenda as a derivative child and her father as the principal beneficiary. Glenda can pursue adjustment of status under 245(i) irrespective of what her father does.
Hector’s brother filed a visa petition on his behalf in 1993. Later, in 1996, Hector's son Simon was born. Simon would be grandfathered under 245(i). Although he was not born when the original petition was filed in 1993, because he was born before April 30, 2001 sunset provision, his father could still have added him to his petition before April 30, 2001, in time so that he could have been a derivative on
the petition. Therefore, he would be considered grandfathered under 245(i), even if Hector never actually added Simon to the petition because he was alive prior to the April 30, 2001 deadline.
Contact The Law Office of George K. Gomez, P.A. to discuss possible eligibility for adjustment of status under section 245(i).
As you can see, section 245(i) can be a viable immigration option for those who would otherwise be ineligible to adjust status. At The Law Office of George K. Gomez, P.A., our skilled immigration team can help you understand your options for adjustment of status, including 245(i) eligibility. Contact The Law Office of George K. Gomez, P.A. to receive a free consultation and learn more about our firm’s offerings.