Adjustment of Status (Green Card) & Section 245(i)

Indian loving mother and daughter in outdoors

On December 21, 2000, President Clinton signed the Legal Immigration and Family Equity (LIFE) Act into law.  LIFE contains a series of immigration benefits destined to alleviate some of the backlog of certain family and work visas and to provide additional possibilities for a limited number of immigrants who have been unable to regularize their situations under previous amnesty and other laws. The main benefit is that it allows certain people to become permanent residents while either remaining in the US instead of a mandatory wait in their home country or to enter the US while awaiting completion of their petition for residency.

By way of background, INA § 245(a) allows those who entered the United States with inspection to adjust status if they are either an immediate relative or are in one of the family-based preference categories and have always maintained lawful immigration status, including always working with employment authorization.

INA § 245(i) allows for the adjustment of those who entered without inspection or, if they entered with inspection and are in one of the preference categories, overstayed their I-94 or worked illegally.  The Legal Immigration and Family Equity Act of 2000 (LIFE Act) extends Section 245(i) by replacing the old eligibility cutoff date (January 14, 1998, the “grandfather” date) with a new date of April 30, 2001.

Before we delve into how Immigration and Nationality Act §245(i) can help you, let’s review the general requirements for lawful permanent residence that every green card applicant must meet:

  • Be lawfully Inspected and admitted
  • Be lawfully present in the U.S. (exceptions are made for immediate relatives, battered spouses, and children)
  • Visa number must be immediately available at the time of filing to adjust status
  • Applicant must affirmatively apply to adjust status
  • Must pass medical and security clearances
  • Must be eligible and otherwise admissible

Who Can Be Helped by §245(i)?

Immigration and Nationality Act §245(i) allows individuals to apply for adjustment of status even if they:

  • entered without inspection
  • overstayed their authorized period
  • worked without authorization
  • were crewman or stowaways
  • was admitted in transit without a visa
  • was admitted as a nonimmigrant visa without a visa (ESTA or Visa Waiver Program)
  • is deportable

Who Cannot Be Helped by §245(i)?

Foreign nationals who are ineligible to benefit from §245(i) are K-1 visa holders, conditional residents, S visa holders, and persons seeking adjustment based on marriage entered into while in proceedings (unless there is clear and convincing evidence that marriage is bona fide).

What are the Requirements to Qualify for §245(i)?

A person is “grandfathered” under §245(i) if:

  • The applicant is the beneficiary of a labor certification or visa petition (including I-140, I-130, I-360, I-526; not I-589 or DV lottery application) that was filed on or before January 14, 1998; or
  • The applicant is the beneficiary of a labor certification or visa petition that was filed after January 14, 1998, but on or before April 30, 2001; and
  • He or she was physically present in the U.S. on December 21, 2000 (legally or illegally).

Note that to be “grandfathered,” the immigrant visa petition or labor certification application filed on or before April 30, 2001 had to be properly filed and approvable when filed.  Properly filed means that it is physical received on or before April 30, 2001 or if mailed, postmarked on or before that date.  If the petition or labor certification was stamped as “received” before April 30, 2001, but then returned for correction, then it is not “properly filed.”  Approvable when filed means that the petition or labor certification was: 1) properly filed; 2) meritorious in fact; and 3) non-frivolous.

For labor certifications, the Department of Labor considers every properly filed application for permanent labor certification to be approvable when filed or §245(i) grandfathering purposes. The “approvable when filed” standard can be met merely by properly filing the application on Form ETA 750.  The Form ETA 750, as a statement from the employer, will meet the burden of establishing that the employment is non-frivolous and meritorious in fact.

How Does §245(i) Work?

Once an application for adjustment of status is filed (Form I-485) under §245(i), the individual becomes eligible for work authorization and may work if he or she applies for and obtains an Employment Authorization Document.

USCIS has taken the view that as long as there was a previous application or petition filed on or before April 30, 2001, that was approvable when filed, the individual beneficiary and spouse and children can adjust status based on an entirely different petition or even a Diversity Visa application.  Essentially, once an applicant meets the requirements for §245(i) relief, he or she continues be “grandfathered” until adjustment of status.

To understand this concept, let’s look at a client we helped. The client entered the U.S. lawfully in visitor status.  He married thrice and went through three divorces.  One of the spouses filed an I-130 for our client before April 30, 2001, but the marriage fell apart before the client could adjust his status.

Subsequently, the client won the Diversity Visa lottery.  The client wanted to know whether §245(i) could “cure” his unlawful presence, which he had failed to maintain.  As noted in the second bullet point at the very top of this page, a green card applicant must maintain lawful status (unless the applicant is an immediate relative, or a battered spouse/child).  In our client’s case, he was adjusting status on the basis of the DV lottery, therefore he did not fall within any of the 3 exceptions.

We felt strongly that the law applied to our client’s case.  There were two major problems in his case.  First, he could not locate the I-130 receipt (or approval notice) and the FOIA response revealed he did not have a record.   Second, our client needed to have his green card case approved before September 30th (a requirement of DV Lottery-adjustment).   We quickly reviewed the client’s FOIA receipt notice (he did not have a copy of his FOIA application) and realized there was a typo in his name.  We presumed that the misspelling on the receipt notice resulted from a misspelling on the FOIA form.

We re-filed the FOIA (under the fastest Track possible) and received a FOIA response within 30 days.  This time, the FOIA response contained a copy of the I-130 filed by his former spouse.  We paid the relevant fee to the Kentucky Consular Center (another requirement of DV lottery-adjustment) and filed the application to adjust status along with the extra form, $1000 penalty fee, and supplemental documentation.  The case was approved and our client received his green card after being in this country unlawfully for 21 years.

So let’s see if our client’s case meets all of the criteria.  He was inspected and admitted (entered the U.S. on a visitor visa). He overstayed his status, but we submitted evidence of his §245(i) eligibility (I-130 receipt notice filed before April 30, 2001).   The Visa Bulletin proved that our client’s priority date was current (an immigrant visa number was available).  The client did not have any issues of inadmissibility (e.g. communicable disease or security issues).

I Have an I-130 Filed Before April 30, 2001.  Can I Use the Same Priority Date?

Approvable when filed for purpose of grandfathering and using an earlier priority date are two separate matters.  Let’s look at another example.  A USC husband files an I-130 for his wife and stepchild (immediate relatives) before April 30, 2001.  The child ages out but remains unmarried (case is converted into 1st preference).  The stepfather does not file a new I-130 listing for the step-daughter.  The mother naturalizes and attempts to use the priority date from the step-father’s petition.  The daughter can use the earlier priority date although she can use the earlier petition for §245(i). [/gdlr_tab]
[gdlr_tab title=”Can §245(i) Help My Wife and Child?”]

A spouse or child of a grandfathered beneficiary is also grandfathered even if he or she does not adjust status with the principal.  A spouse or child is also grandfathered “even after losing the status of spouse or child, such as by divorce or by becoming 21 years of age” as long as the relationship existed with the principal applicant at the time a qualifying petition or application properly filed on or before April 30, 2001.

Let’s look at another client’s example.  A USC filed a relative petition for his married son before April 30, 2001.  While waiting for the priority date to become current, the USC petitioner died.  The client departed and re-entered the U.S. several times never overstaying his authorized stay.  The client tried to re-enter the U.S. three times, at three different ports of entry; all three times he was denied because his I-130 was pending.

The client entered the U.S. illegally through the Canadian border.  The client wanted to know if he could use the I-130 filed by his deceased father and use §245(i) to cure his entry without inspection (EWI).

In this case we have three complications.  First, an I-130 petition is usually revoked automatically upon death of the petitioner.  Second, the client had been refused entry three times at three different ports of entry.  Third, the client entered without inspection.

To address the first issue, we made a compelling argument to request that the I-130 petition be “reinstated” on a humanitarian basis.  Second, as part of the reinstatement, we had to locate a “substitute sponsor” which USCIS defines very narrowly.  We were able to convince our client’s sister to serve as a substitute sponsor.  Third, since our client was using the I-130 petition filed by his deceased father, we had to prove that the petition was approved (not just filed).  We were able to obtain a copy of the I-130 Approval Notice.

Next we had to address the three refusals at the port of entry.  We reviewed all 3 of the CBP’s transcripts and found a common theme. The reason for the refusal was based on the pending I-130.  That meant that our client was only refused entry, he was not “removed” or “deported.”  Lastly, the I-130 Approval Notice that we submitted clearly noted that the filing date was prior to April 30, 2001.  We assembled the green card application along with the §245(i) form, fee, and documents and are awaiting an interview.

Can §245(i) Help Aged-Out Children?

As long as they were “derivatives” on the relative petition, Aged-out children and divorced spouses are also grandfathered and can file for adjustment of states independently of the principal and need not follow to join or accompany the principal.  Using our client’s example above, on the I-130 filed by his deceased parent, our client listed the names of his wife and children.  It turned out that the son entered the U.S. lawfully so he did not share his father’s issue of entry without inspection.  Our client’s son had since “Aged out” (turned well beyond 21).  Since his name was listed on the petition filed for his father (or client), he was eligible to adjust using §245(i).  The only problem that prohibited us from filing an adjustment application for our client’s son was that there was no “substitute sponsor.”  All other factors for adjustment of status and §245(i) eligibility were met.

After-acquired children and spouses are allowed to adjust as dependents under §245(i) with the principal, but are not grandfathered and therefore may not adjust of the principal has already adjusted.  So a person who becomes the spouse or child of a grandfathered person who has already acquired LPR status cannot accompany or follow to join the principal and cannot adjust under §245(i) unless he or she has an independent basis for grandfathering.

In 2013, the Board of Immigration Appeals (BIA) issued a decision consistent with USCIS’ practices for after-acquired children and spouses.  The facts in the case were a bit complicated.  The husband, Charlemagne Estrada, had a family-based petition filed in his behalf prior to April 30, 2001 by his first spouse, though the couple later divorced.  Because the petition was considered approvable at the time of filing, Charlemagne was grandfathered under 245(i).  However, in order to adjust, he needed a new petition filed in his behalf.  He and his second wife, Vanessa, were married after April 30, 2001, thus making her an after-acquired spouse. But his second wife was also undocumented.  Because she could not file a petition in his behalf, he could not take advantage of his grandfathered status based on their marriage.

Vanessa had had a labor certification filed in her behalf prior to April 30, 2001, but it was determined by an immigration judge not to have been approvable when filed.  A subsequent labor certification was filed and a Form I-140 approved on her behalf, but not until 2006.  Because she was not considered grandfathered under Charlemagne’s earlier I-130 petition, she was not eligible to adjust under 245(i) based on the second labor certification and approved I-140. Because no subsequent petition had been filed and approved in Charlemagne’s behalf, which would have allowed him to adjust under 245(i), Vanessa cannot adjust with him as his derivative spouse. Hence, the BIA found neither adjustment applicant eligible for 245(i).

The BIA clarified that in order to be “grandfathered” and thus eligible for 245(i) adjustment, the relationship establishing the derivative spouse or child must have been in existence on or before April 30, 2001. Spouses and children who were born after that date or whose marriage took place after that date are classified as “after-acquired,” are not considered “grandfathered,” and thus cannot adjust under 245(i).  Nevertheless, if they are considered derivatives (“dependents”) of the principal beneficiary at the time he or she is adjusting under 245(i), they may adjust as a derivative with that parent or spouse. In other words, they may not adjust under 245(i) independent of that relationship.

Can §245(i) Help Me if I am Inadmissible?

No. §245(i) does not waive inadmissibility.   Grandfathering is also unrelated to unlawful presence; a person may accrue unlawful presence even if he or she is grandfathered.  Section 245(d) does not forgive of unlawful presence or other breaches of status.  Unlawful presence continues to accrue until an application for adjustment of status is filed; it is the filing of the adjustment of status application that stops unlawful presence from accruing.

There are many other grounds of inadmissibility that apply even though you may have relief pursuant to §245(i).  A foreign national who continues to work without authorization may remain eligible to adjust status if and when permanent residence is approved and an immigrant visa is available, but may be removed from the United States if this unlawful employment is discovered in the meantime.

In addition, a United States employer who files a labor certification or Form I-140, naming an unauthorized individual as a beneficiary, will be subject to sanctions if discovered to be knowingly employing that individual prior to adjustment of status or USCIS granting work authorization.  The application for adjustment of status under §245(i) does not protect an individual against removal based on an applicable ground of inadmissibility by Immigration and Customs Enforcement (ICE).

The requirements not covered by §245(i) must be resolved before using §245(i).  For example, a foreign national who is in the United States illegally accrues unlawful presence until he or she properly files an application for adjustment of status.  If the foreign national departs the United States (even if he or she obtained an advance parole) after accruing 180 days or more of unlawful presence in the United States, he or she will trigger a bar to adjustment of status or immigrating on an immigrant visa (a 3-year or 10- year bar under Section 212(a)(9)(B) of the INA).  This bar is not forgiven by §245(i) in most instances.  Similarly, a J visa holder subject to the 2-year foreign residency requirement (that has not been fulfilled) must apply for a waiver before applying to adjust status.

Is §245(i) similar to general amnesty?

Many persons mistakenly believe that Section 245(i) of the INA constitutes general amnesty.  It does not provide for the regularization of status of immigrants who arrived or remained in U.S. illegally.  It does not provide an opportunity for refugees or asylum seekers of certain nationalities (including Haitians and central Americans) to receive the same benefits as Cubans and Nicaraguans (e.g. 1997 Nicaraguan Adjustment and Central American Relief Act).  It does not restore Medicaid or food stamps to legal permanent residents that were taken away in the legislation of 1996.

Finally, it does not allow judges to make case-by-case determinations in cases of deportation for aggravated felonies. It includes a temporary extension of Section 245i, a new ‘V’ visa for spouses and children of legal permanent residents, an expanded ‘K’ visa for spouses and children of US citizens, adjustment of status for certain members of class action suits, and protections for applicants under HRIFA [1998 Haitian Refugee Immigration Fairness Act] and NACARA.

Can §245(i) Help Me if I am in Removal Proceedings?

Legally, Section 245(i) does not protect an individual from deportation nor does having a grandfathered petition or application for labor certification place an individual in a period of stay (free from removal proceedings) authorized by the Secretary of Homeland Security.

However, practically speaking, yes, §245(i) can help you if you are in or even prevent you from being put into removal proceedings.  If you are in removal proceedings, an Immigration Judge mayyear adjustment of status applications under §245(i) (even in conjunction with a waiver of inadmissibility).

If you are not in removal proceedings, but fear that Immigration and Customs Enforcement (ICE) might approach you, field officers may not initiate removal proceedings against if you are eligible to adjust status under §245(i), if your case is brought to their attention based on the filing of an immigrant petition, labor certification application, or application for adjustment of status filed by or on behalf of you.  If you are in an undocumented status and ICE approaches you in the course of routine enforcement, you may be processed under routine procedures.  However, ICE may also exercise its prosecutorial discretion to not initiate removal proceedings against you.

The long and short of it is if you have §245(i) relief and are eligible to adjust status, you are sitting on a “gold mine.”  One of our clients met all of the qualifying criteria to adjust status except that their I-130 was filed six months after the April 30, 2001 deadline.

How We Can Help?

  • We assess the case thoroughly to ensure that all collateral issues (such as those given in the examples described above) are addressed prior to filing and then prepare the legal arguments and gather the required supporting documents to submit an approvable case
  • We file a FOIA request to obtain a complete record of the client’s file from USCIS
  • We work within the client’s deadlines (such as the DV lottery-adjustment deadline of September 30th)
  • We work with clients to prove physical presence on December 21, 2000
  • We assist the client with preparing a Declaration to address any negative factors and to persuade the adjudicator to exercise favorable discretion
  • We provide clients with a standard and alternative list of documents to support continued physical presence and residency since the last arrival