Section 245i Adjustment

Section 245i Adjustment

Section 245(i) Adjustment for those out of status or who entered the U.S. Illegally

Those in the U.S. seeking to apply for legal residence, or a green card through marriage to a U.S. citizen or other family member need to be aware of an important aspect of the application process.

One frequent obstacle to adjusting status to that of a legal resident arises when the non-citizen applicant has entered the U.S. illegally, or without inspection.

In such cases, it will be necessary to qualify under section 245(i) of the Immigration and Nationality Act. Section 245(i) eligible applicants may apply for their green cards in the U.S. with the U.S. Citizenship and Immigration Service (USCIS), rather than through the U.S. Consulate in their home country.

Generally to be eligible for Section 245(i) treatment, the applicant must be the beneficiary of a family visa (I-130 Petition) or labor certificate filed for him or her on or before April 30, 2001, which is called the sunset date for Section 245(i). The applicant must also have been physically present in the U.S. on December 21, 2000. Those who qualify for 245(i) treatment based on a petition filed on or before the previous sunset date of January 14, 1998 are not subject to the December 2000 physical presence requirement.

Section 245(i) also allows those who have worked illegally in the U.S. or those who are out of status due to overstaying a visa to adjust status in the U.S. rather than leave the U.S. and pursue consular processing in the consulate abroad. Working illegally and overstaying a visa is generally a problem for those adjusting status through a non-immediate relative petition, such as those I-130s filed by a U.S. citizen sibling or legal permanent resident parent or spouse. Immediate relatives I-130 Petitioners, on the other hand, include U.S. citizen spouses, U.S. citizen parents of minor children, and U.S. citizen children age 21 or over.

Section 245(i) requires payment of a $1,000 penalty fee and the filing of a supplemental form, in additional to the Adjustment of Status Application (I-485), and the regular filing fees for that application.

It is also possible to be grandfathered into Section 245(i) eligibility by a previous approvable petition filed for the applicant in the past even if he or she is not seeking adjustment through the same family petition that creates 245(i) eligibility.

It is also possible to acquire derivative 245(i) status, such as through a spouse who is the beneficiary of a 245(i) eligible petition, or through a parent who was the beneficiary of a 245(i) petition filed by the uncle or aunt of the applicant, for example, when the applicant was a minor. It is sometimes complicated to determine if one is 245(i) eligible based on derivative status or grandfathering, but it is worth knowing as the benefit is potentially so great.

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