A blog about U.S. immigration matters by Paul Szeto, a former INS attorney and an experienced immigration attorney and counsel. Contact Info: 732-632-9888, http://www.1visa1.com/ (All information is not legal advice and is subject to change without prior notice.)

Friday, March 26, 2010

Section 245(i) of the Immigration Act – Special Adjustment Provision

Studies have found that there are over 10 million foreign nationals who are without legal immigration status in the U.S.  They live and work here, and they also get married and build families like everybody else in the U.S. Sooner or later, many of them are going to be eligible to apply for an immigrant visa through a family relation or a job offer.  However, due to their questionable immigration status, they may not be able to adjust their status to become a lawful resident.  Section 245(i) of the Immigration and Nationality Act is a special provision of law which allows a person to apply for a green card from within the U.S. in spite of his or her lapsed immigration status.

Certain groups of individuals are normally barred from applying for a green card in the U.S. under the immigration law, including those who entered without inspection, those who overstayed their immigration status, and those who worked without authorization by the government.  Other ineligible groups include crewmen, visa waiver program entrants, and those who transited without a visa.  Under Section 245(i) of the Immigration Act, however, these individuals are allowed to adjust their status if they meet certain requirements including payment of a special fee (current fee is $1000).  To be eligible for Section 245(i) benefits, a person must be a beneficiary of an immigrant visa petition or a labor application filed on or before January 14, 1998.  The LIFE Act amendment extended the deadline to April 30, 2001.  However, to take advantage of the April 30, 2001 deadline, the applicant must also prove that he or she was physically present in the U.S. on December 21, 2000.
  
Another benefit of 245(i) is that the person does not have to rely on the original application to apply for adjustment of status as long as the original application was properly filed and approvable when filed.  Thus, even though the original application or petition might have been denied, the applicant can apply for a green card based on a subsequent immigration petition.  For 245(i) purposes, a petition is considered properly filed if it was physically received by the government on or before April 30, 2001 or if it was postmarked on or before that date.  “Approvable When Filed” means that on the date of the filing, the petition was properly filed, had merits, and was not frivolous. 

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For example, Johnny entered the U.S. on a tourist visa in 1997 but failed to depart as required, and his former employer filed a labor application for him by mail before January 14, 1998.  However, due to financial problems, the employer’s business was closed in 1999 and was not able to continue to sponsor Johnny.  Five years later, Johnny won the visa lottery (diversity visa) and became eligible for an immigrant visa.  Under Section 245(i), Johnny was able to apply for adjustment of status (I-485) based on his grandfathered labor application.  Not only was Johnny eligible, his spouse and children under 21 were also protected by Section 245(i). 

Section 245(i) is not an amnesty for the undocumented.  For one thing, the law already “sunset” or expired on April 30, 2001, and those who missed the deadline would not be eligible to take advantage of it.  Also, 245(i) does not overcome the more serious immigration violations such as fraud, misrepresentation, reentering after deportation, criminal acts, etc.  However, absent other major changes in the current immigration system, section 245(i) remains the most important benefit for many individuals who have fallen out of immigration status to apply for a green card, provided that they meet all the legal requirements.

13 comments:

  1. Today is October 25, 2010
    Question is:
    Is the Section 245(i)opened again?
    Because somebody told me that she is applying in Immigration based in that Section?
    Thanks

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  2. Can a person attend college with a 245(i) document?

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  3. can a person attened college with a 245(i)document?

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  4. No, section 245(i) has not been renewed. A person may still be able to apply 245(i) if he or she is "grandfathered" by previously establishing eligibility.

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  5. Is there a possibility that 245i will renew in the near future?

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  6. There has been proposals to renew section 245(i) from time to time. Please follow our blog to get any updates.

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  7. I applied for the 245(i) before April 30,2001. The application was denied and i've still worked with the same employer for more than 15 years. It's a big company and makes millions of dollars every year. Would you rethink the case or am i still protected by 245(i)? Please answer my question; i'd appreciate it.

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  8. If 245(i) was filed in time.by a permanent resident for his child over 21. the child got married not knowing that the marriage would revoke the application. Can the new changes help revive this application?

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  9. Paul,

    Thanks for the info and for the 2010 update that, while disappointing for some, cleared further doubts.

    I imagine the only options now for someone who can't benefit from 245(i) anymore would be to wait for its renew (being passive of removal in the meantime), OR go a consulate abroad. Am I right? Would a return ban apply if the case warrants?

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  10. is there still a way to make a parent legal, (im 21) without 245i and her not having to leave the country? I have two little sisters and a little brother.

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  11. As I understand 245(i) those parents (LPR or American Citizens -USC) who submitted an I-130 by 4/30/2001 for a spouse, son or daughter OR sibling [USC] physically present on 12/21/2000 may continue to reside in the U.S. as long as he or she does not work, get married [LPR], leave the U.S. or commit a crime.
    However, the EOIR (immigration court) has not truly defined their status of being present is in limbo and not subject to deportation in case one is detained by ICE. there does not exist "case law" defining the "limbo status". In my opinion Pres. Clinton and Congress intended to give them the legal right to remain in the U.S. in the interim period. Children beneficiaries who in the interim have reached the age of 21 change their status from Family 2(a) to Family 2(b), thus the waiting period is about 40 years. for Mexico and India. since there are restrictions on what they may DO while waiting they may be subject to deportation while awaiting an approved I-130 to become ripe in order to adjust status here in the U.S.A. I say we need a case to set case law. Any comments?

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  12. Hi Paul, thks 4 your time.
    I~d applied and it was granted under the 245 act. therefore, I left US, but first I~ve received a I-485 approved by US immigration. can I still followed the procedures, even if I am not in US right now?
    tks in advance.

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