After-acquired spouses and children not grandfathered for 245(i) benefits

Section 245(i) of the Immigration and Nationality Act (INA) is a special provision of the law that allows certain groups of individuals to adjust status to become lawful permanent residents of the U.S. despite their illegal status.  The deadline for filing an immigrant petition under 245(i) is April 30, 2001.  For individuals who qualify for section 245(i) benefits, they are considered “grandfathered” for future applications.  It means that they are able to apply for adjustment of status based on subsequent immigrant visa petitions unrelated to the initial application.  The spouses and children of the principal applicant in existence are also grandfathered for 245(i) benefits.     However, for individuals who became spouses or children of a principal grandfathered applicant after April 30, 2001, they cannot qualify as "derivative grandfathered aliens" for purposes of section 245(i),  according to a recent decision by the Board of Immigration Appeals. Matter of Vanessa Joan ESTRADA, 26 I&N Dec. 180 (BIA 2013)

Section 245(i) allows individuals who entered the U.S. without inspection, overstayed their status, violated their immigration status, etc., to have a chance to apply for adjustment of status and become legal residents by paying a penalty fee.  It is an old law that has not been renewed by Congress.  Hence, only those who are grandfathered may use 245(i) to apply for legal status.  There are two types of grandfathered individuals.  First, the principal applicants who filed “an approvable when filed” immigrant visa petition on or before April 30, 2001.  Second, the spouses and children of the principal applicants in existence on or before April 30, 2001.  They are also grandfathered and may also be independently qualified for section 245(i) relief in future petitions.  However, neither section 245(i) nor the regulations deal with the status of the spouses acquired, and children born, after April 30, 2001. 

In Estrada, the two respondents are a couple who are citizens of the Philippines.  They both entered the U.S. as temporary visitors and overstayed their status.   Similarly they both claim benefits pursuant to section 245(i) of the INA based on immigrant petitions filed before April 30, 2001.  The husband was the beneficiary of an I-130 petition filed by his former wife.  The wife submitted an I-140 employment-based immigrant petition as an “extraordinary ability” alien under the EB-1A  employment visa category.  However, they were not married until 2007.  Although the husband is a grandfathered principal applicant based on the I-130 petition (which apparently was not consummated), he has no basis to file a subsequent visa petition and therefore is relying on his spouse’s petitions.

The wife withdrew the initial I-140 petition in 2002. Subsequently, a second employment-based I-140 visa petition was filed on her behalf in 2006.  The couple now claim benefits under section 245(i). They make two independent arguments regarding their eligibility.   First, they argue that the wife should be  grandfathered based on the first I-140 visa petition filed in April 2001.  Second, they argue that they are both grandfathered based on the I-130 petition filed on behalf of the husband in 2000 by his former wife.

The Board found both arguments unpersuasive and dismissed their appeal.  First of all, the BIA concluded the wife’s first I-140 petition was not “approvable when filed” because the application was completely lacking in supporting evidence.  (Normally an EB-1A extraordinary petition requires extensive supporting documentation).  Therefore, she is not a grandfathered alien based on her first I-140 petition.  Regarding the husband’s I-130 petition, the Board did find the husband to be a grandfathered principal applicant.  However, the BIA concluded that the wife, as an after-acquired spouse, did not become a grandfathered applicant.  As such, she cannot use a subsequent visa application, i.e., her second I-140 petition, to apply for legal status.  Consequently, the husband also cannot claim any benefit as the dependent spouse of the wife.

Neither section 245(i) or the related regulation provides answers to the status of after-acquired spouses and children after April 30, 2001.  The Board therefore turned to "The Supplementary Information to the Interim Rule" for answers.  The Attorney General in the Supplement explains that that “ the purpose of grandfathering was to allow qualifying aliens to preserve their eligibility for section 245(i) adjustment after the April 30, 2001, sunset date."  The Board therefore found the intent of section 245(i) is to protect the status of foreigners who met the requirements on or before the deadline only.  Spouses acquired and children born afterwards are not within the class of people protected by section 245(i).

The Board explained that a spouse in existence on April 30, 2001 preserves her grandfathered status despite changes in the relationship with the principal (e.g., divorce, death)  afterwards.  Similarly, subsequent changes in circumstances such as marriages or births that took place after April 30, 2001 should not disturb the original class of eligible individuals under section 245(i).  To support its position, the Board cited several BIA and Federal Court decisions:  Matter of Ilic, 25 I&N Dec. 717 (BIA 2012); Matter of Butt, 26 I&N Dec. 108 (BIA 2013); Linares Huarcaya v. Mukasey, 550 F.3d 224 (2d Cir. 2008); and Landin-Molina v. Holder, 580 F.3d 913 (9th Cir. 2009)

Finally, the Board emphasized that after-acquired spouses and children may still be indirectly eligible for section 245(i) relief in certain circumstances.  Under section 203(d) of the INA, these spouses and children who are accompanying or following to join a grandfathered adjustment applicant are also “considered grandfathered”  if the qualifying relationship (i.e., marriage or birth) existed before the grandfathered alien adjusts his or her status.  It is important to note that the date of adjustment of the grandfathered alien is usually after the sunset date of April 30, 2001.

Section 203(d) is a general provision that applies to all adjustment applicants.  The spouses and children in this situation are merely immigrating as dependents of the principal immigrant.  It just happens that the principal is applying for adjustment of status pursuant to section 245(i).   They are only treated as "grandfathered" with the principal but do not enjoy actual grandfathered status.   Dependents who have actual grandfathered status under 245(i) are able to independently apply for adjustment of status based on their own, subsequent visa petitions.  This difference is night and day, as illustrated by the Filipino couple in Estrada.

(Immigration laws and policies change regularly.  If you have any questions regarding this article, please visit www.1visa1.com to schedule legal consultation.) 

BIA Finds Labor Certification “Approvable When Filed” for Section 245(i) Grandfathering

In a recent decision decided on April 19, 2013, the Board of Immigration Appeal (BIA) held that a labor certification is “approvable when filed” for purpose of grandfathering under section 245i of the Immigration and Nationality Act if it is (1) “properly filed,” (2) “meritorious in fact,” and (3) “non-frivolous.” 

 
A labor certification is “properly filed” if it is submitted to and accepted for processing as a completed application by the correct local DOL office on or before April 30, 2001.   Date-stamping by the local office is evidence that the application was properly filed before the sunset date for further processing.  A labor certification is “non-frivolous” if it is not deemed to be “patently without substance.”  Finally, if a labor certification is “properly filed” and “non-frivolous,”  it is also presumed to be “meritorious in fact” absent any apparent bars to a favorable adjudication (e.g., a lack of qualifying employer-employee relationship). 

 
Applying the above legal standard, the Board in Matter of Butt, 26 I&N Dec. 108 (BIA 2013), held that the original labor application filed by his employer on April 30, 2001 did “grandfather” Mr. Butt for the purpose of adjustment of status pursuant to section 245i.  The case was remanded to the Immigration Court for further proceedings.  As somebody who entered the United States without having been inspected and admitted by an immigration officer, Mr. Mutt would not be eligible to apply for a green card through adjustment of status without the protection of section 245i.

(Immigration laws and policies change regularly.  If you have any questions regarding this article, please visit www.1visa1.com to schedule legal consultation.) 

BIA held Advance Parole Absence does not trigger Unlawful Presence Bar

In a recent BIA decision, the Board surprisingly held that a foreigner who left the United States after securing an “advance parole” travel document from the DHS is not considered a departure for the purposes of determining whether the person is subject to the 10-year unlawful presence bar.  The Board held that the foreigner is therefore allowed to apply for adjustment of status to become permanent resident under section 245(i) of the Immigration and Nationality Act. 

In Matter of Arrabally and Yerrabelly, 25 I&N Dec. 771 (BIA 2012), the respondents, husband and wife, legally entered the U.S. in 1999 and 2000 respectively.  After overstaying their nonimmigrant visas, they were present in the U.S. without legal status for more than five years.  Subsequently, the male respondent sought to apply for legal status based on an approved employment based immigrant visa petition filed on his behalf by an employer pursuant to section 245(i) of the Act.  However, the couple made a trip to India to attend totheir aging parents after securing advance parole travel documents from the DHS.  Upon their return to the United States with advance parole, DHS argued that they were barred from applying for adjustment of status because they were inadmissible to reenter the United States for ten years pursuant to section 212(a)(9)(B)(i)(II) of the Act.  This section of the law bars foreigners from admission for ten years if they departed the United States after having been unlawfully present for more than one year.

The BIA previously held in Matter of Lemus that section 245(i) does not overcome the unlawful presence bars, absent a waiver.  In Lemus, the respondent did not have an advance parole document when he left the United States.  Here, the BIA carved out an exception for the respondents in Matter of Arrabally and Yerrabelly, explaining that their absence from the U.S. after a grant of advance parole did not constitute a departure that would trigger the unlawful presence bars.  The BIA noted the advance parole (1) was approved in advance by the United States Government on the basis of a merits application; (2) presupposed the alien’s authorized return thereafter, and (3) was requested solely for the purpose of preserving the alien’s eligibility for adjustment of status.  The BIA seemed to be saying that the respondents merely took a brief trip outside the United States with no intention to depart.

Hence, the BIA concluded that the respondents are not inadmissible for adjustment of status pursuant to section 212(a)(9)(B)(i)(II).  Therefore, they are eligible to apply for adjustment of status based on section 245(i).  The decision no doubt is good news for applicants who must travel for emergency reasons.  However, this decision could still be challenged by the government in federal court.  For example, as the dissenting opinion noted, a recent Third Circuit decision also involved advance parole travel but reached a different conclusion.  Therefore, it is very important for applicants to fully understand the legal ramifications before travelling on advance parole.  

BIA held Section 245(i) Unavailable to Reentrants with Prior Violations

Litigation surrounding section 245(i) of the Immigration and Nationality Act often involves complex factual and legal issues. Matter of Miguel LEMUS-Losa, 25 I&N Dec. 734 (BIA 2012), a recent BIA decision on section 245(i) is such an example.  In LEMUX, the BIA held that adjustment of status under section 245(i) is unavailable to an alien who is subject to the 3-year and 10-year bars under section 212(a)(9)(B)(i)(II) of the Act, without a waiver.

Section 245(i) was enacted in 1994 by Congress to allow certain applicants for adjustment of status in the U.S. to be eligible to receive their permanent resident status even though they entered the U.S. without having been formally inspected by an immigration officer first.  However, Section 301 of the Illegal Immigration Reform and Immigrant Responsibility Act (IIRIRA) of 1996 imposed two additional grounds of inadmissibility for foreigners who have prior violations of immigration laws.  First, section 212(a)(9)(B)(i)(II) of the Act imposes the 3-year and 10-year bars for those who have been present in the U.S. unlawfully.   Second, section 212(a)(9)(C)(i)(I) punishes those individuals who reentered or attempted to reenter the U.S. after prior violations. 

In this case, the foreigner reentered the U.S. without authorization after having been present in the U.S. for more than one year.  He then applied for adjustment of status.  Both the immigration court and the BIA denied his request based on the 10-year-bar under 212(a)(9)(B)(II) of the Act. The case was appealed to the 7th Circuit, which disagreed and remanded the case back to the BIA for another decision.  The 7^th Circuit’s decision is based on BIA’s failure to examine the differences between section 212(a)(9)(B)(i)(II) and section 212(a)(9)(C)(i)(I) of the Act.  Section 212(a)(9)(C)(i)(I) makes it inadmissible for foreigners who had accrued one year of unlawful presence or who had been previously deported from the U.S., and then reentered or attempted to reenter the U.S. again.  The 7^th Circuit reasoned that these reentrants’ behavior are more serious than the first class of individuals who are merely “seeking admission” after accruing unlawful presence.

On remand, the BIA analyzed the statutes again and came to the same conclusion that section (a)(9)(B)(i)(II) or the 10-year-bar still bars the applicant from adjustment in spite of section 245(i).  According to the BIA, the meaning of “seeking admission” is a lot broader than the general meaning of the term and covers many different types of situations.  The BIA concludes that although section (a)(9)(B)(i)(II) and section (a)(9)(C)(i)(I) are different, neither section covers mere“entry without inspection” or other conduct that section 245(i) was designed to forgive.  Ultimately, the BIA decided to remand the case to the immigration judge to examine whether section (a)(9)(C)(i)(I) also applies here as the applicant apparently reentered the U.S. after prior violations.  The final chapter of this case has yet to be written. 

Third Circuit Appeal Court held section 245(i) does not overcome 10-year illegal presence bar

Section 245(i) of the Immigration and Nationality Act allows certain foreigners in the United States who would not normally qualify to apply for adjustment of status in the U.S. to apply for a green card even though they entered the U.S. without inspection, worked in the U.S. without authorization, and, for those who entered legally, failed to keep their lawful status since entry.  The LIFE Act amendment extended the filing deadline for section 245(i) relief to April 30, 2001.

However, Congress also passed another piece of legislation which punishes foreigners who had stayed in the U.S. without lawful status.  Section 301 of the Illegal Immigration Reform and Immigrant Responsibility Act (IIRIRA) of 1996 imposed two bars to admissibility for foreigners who were unlawfully present in the U.S.  Individuals who have been unlawfully present in the U.S. for more than 180 but less than 365 days, and then depart from the U.S., are not eligible to return for the next three years. Similarly, foreign nationals who have been unlawfully present in the United States for more than 365 days, and then depart from the U.S., are inadmissible for the next ten years (the 10-year bar).

The question arises as to whether a person in the United States who is subject to the 10-year bar may still apply for a green card through adjustment of status by invoking section 245(i) as a defense.  Recently, the 3rd Circuit Court of Appeal held that an Indian software engineer who is subject to the 10-year bar may not adjust her status under section 245(i).  In the case of Cheruku v. Att’y Gen. of the U.S. decided on September 22, 2011, the 3rd Circuit analyzed the above issue and concluded that Congress does not intend section 245(i) to overcome the 10-year-bar to admission.

Cheruku is a software engineer from India who first entered the U.S. on a B-1 business visa in 1995. She stayed in the U.S. and was offered a job by a U.S. employer.  Her employer filed a labor application and immigrant visa petition on her behalf, both of which were approved.  Cheruku filed an I-485 adjustment of status application on December 21, 2001 to apply for lawful permanent residence status.  While the I-485 was pending, she travelled outside of the U.S. and used her advance parole return to the U.S. in 2002. In 2004, her I-485 was denied based on the 10-year-bar.  Both the Immigration Court and the Board of Immigration Appeal found her barred from applying for a green card.  She petitioned the 3rd Circuit Court to review her case. 

Adopting the reasoning of the BIA, the Third Circuit first acknowledges that Congress passed section 245(i) and the LIFE Act with the intention to waiver some general grounds of inadmissibility such as entry without inspection and overstaying of status.  However, it also found the 10-year-bar contained in the IIRIRA was intended to punish the more culpable class of foreigners who was present illegally in the U.S., then departed or deported, and then reentered the U.S. The LIFE Act does not explicitly excuse this type of behavior.  In fact, Congress requires that foreigners who are subject to the illegal presence bars must first apply for a waiver from outside of the U.S. to obtain permission to reenter the U.S.  Cheruku actually was paroled into the U.S. by using her advance parole (AP) travel document.  The advance parole document is an auxiliary benefit of the adjustment application.  However, the document itself contains a conspicuous warning that using the AP to travel may trigger and does not overcome the illegal presence bar to admissibility.  The 3rd Circuit Court found no difference between Cheruku and those who reentered the United States illegally. 

It is interesting to note that other federal circuits have reached different conclusions on this issue.  While the 10th Circuit also adopts the BIA approach and held that the 10-year bar trumps section 245(i), the 7th Circuit held the other way.  This remains to be an unsettled area of the law, to say the least.  Suffice to say that foreign nationals who have been unlawfully present in the U.S. should not travel outside of the U.S. if they intend to use section 245(i) to apply for lawful permanent residence status.

It’s time to bring back Section 245(i)

It may be hard to believe, but April 30 marked the 10th anniversary of the sunset date of Section 245(i) of the Immigration and nationality Act – a law that has changed the lives of tens of thousands of people in the United States by allowing them to be legalized. 

In order for a foreign national to adjust their status to that of a lawful permanent resident, she must meet a number of conditions and requirements in the legal process called adjustment of status. Congress passed Section 245(i) to allow foreigners to adjust their status even though they did not meet all the conditions and requirements. For examples, foreigners who had worked without authorization or who had failed to maintain their legal status were not eligible to apply for adjustment of status before Section 245(i) was signed into law. Section 245(i) began effective on October 1, 1994 and was initially scheduled to expire on January 14, 1998. The LIFE Act amendment extended the deadline or “sunset date” to April 30, 2001. Eligible applicants must pay a penalty fee of $1000 in addition to the regular filing fees.

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The significance of Section 245(i) is that a foreigner may preserve his eligibility by virtue of an immigrant visa petition filed on or before April 30, 2001, and use it to apply for adjustment in the future based on an unrelated immigrant visa petition. A large of number of applicants were able to take advantage of the law by means of an immigrant visa petition filed by a family member or an employer before the sunset date. They are considered “grandfathered” for 245(i) benefits. However, for those who missed the sunset date, they can only hope that 245(i) is extended again by Congress.

Over the past decade, there have been proposals to bring back 245(i) to life. For example, after a meeting between U.S. President, George W. Bush, and Mexican President, Vicente Fox, on March 22, 2002, the House of Representatives passed a bill extending section 245(i) to November 30, 2002. Unfortunately, none of these proposals was eventually passed by Congress and became law. There has been strong opposition to passing any law that would legalize a large of foreign nationals by the restrictionists. Their voice were particular strong during the last few years when the U.S. was suffering from one of the worst economic downturns since the Great Depression. In fact, since 2001, our immigration policy can be characterized as one of strong enforcement but not comprehensive reform. For instance, when Republicans controlled both House and Senate and also the White House, the 108th Congress passed the Real ID Act which added strong enforcement provisions in the law. In the more recent years, when Democrats controlled both the House and Senate, the situation did not change much. For example, when the Dream Act was proposed, it was welcome by almost all groups of political voices including many restrictionists. At the end, however, it still failed to pass the Senate.

The debate over our immigration policies will continue for years to come. The prospect of Congress adopting Comprehensive Immigration Reform (CIR) may not great in the next few years. The question remains: how do we deal with the millions of foreigners who are already living in the U.S. without legal status? We are certainly not ready to remove them on a massive scale. Some of them actually have extensive family ties here including USC spouses and children. Bringing back Section 245(i) may be a good compromise. On the one hand, it is not an amnesty that is opposed by the conservatives. It is only an extension of an existing provision of the law. The USCIS has both internal protocols and adjudication experience for processing 245(i) cases. It does not excuse criminal offenses or serious immigration violations. On the other, Section 245(i) fosters family relationships and generates additional revenues for the government – both are important to our country. It should not be too difficult for the legislators to explain the benefits of 245(i) to their constituents. Hence, after Section 245(i) has been sunset for 10 years, it may be the right time to bring it back.

(Immigration laws and policies change regularly.  If you have any questions regarding this article, please visit www.1visa1.com to schedule legal consultation.) 

245(i) Applicants not Subject to Unauthorized Employment Restrictions

Many clients of our firm have expressed concerns about their previous unauthorized employment when they are applying for lawful permanent residence status through adjustment of status in the U.S. Their concerns are valid as the law specifically prohibits a foreigner from working in the U.S. without permission by the U.S. government. Specifically, Section 245(c)(2) of the Immigration and Nationality Act makes an applicant ineligible for adjustment of status if he or she engaged in or continued to accept unauthorized employment. In other words, for a foreign national who has worked illegally, even if he has an approved immigrant visa petition sponsored by a family member or employer, his application for a green card may still be denied.

Unauthorized Employment and Adjustment
Such a rule may seem harsh to the illegal immigrants considering many of them came to the U.S. for economic opportunities. Some others, such as those who were brought to this country as children, simply have to work, legally or illegally, to survive. Fortunately, Congress makes certain exceptions to this prohibition. First of all, applicants who are parents, spouses or children of U.S. citizens are not subject to this rule. These applicants are considered "immediate relatives" of U.S. citizens and an exception is made to foster family reunion. Secondly, for applicants who base their green card application on an employment visa, as long as they come to the U.S. lawfully and the total number of days of their immigration violations (including unauthorized employment and other status violations) is no more than 180 days, they are still eligible to adjust status.

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Immediate Relatives and 180-Day Exception
What about those applicants who are not immediate relatives of U.S. citizen and who have more than 180 days of status violations or unauthorized employment? Generally, they are not eligible to apply for adjustment of status unless they meet the requirements under section 245(i) of the Immigration Act, which makes an exception to allow foreign nationals with immigration violations to apply for adjustment of status.  For instance, a person entered the U.S. on a tourist visa, overstayed her period of admission, and also worked without authorization.  Several years later, she applies to adjust her status to become a legal resident based on an approved family-sponsored visa petition (I-130) filed by her U.S. citizen brother.  In this situation, she would not be eligible to apply for a green card unless she is also eligible for section 245(i) relief. The requirements for section 245(i) were discussed in previous articles. Suffice to say that one must have filed a non-frivilous immigrant visa petition on or before April 30, 2001, to be eligible for section 245(i) relief.

245(i) and Unauthorized Employment
In spite of the exceptions provided by section 245(i) of the Immigration Act, some adjustment applications are still being denied because of the applicant's unauthorized employment. One such employment-based adjustment case was denied by an immigrant judge because the applicant had engaged in more than 180 days of unauthorized employment. However, on appeal, the Board of Immigration Appeals (BIA) reversed the judge's decision and held that Section 245(i) does allow the applicant to apply for adjustment of status.

In Matter of ALANIA-Martin, decided on April 30, 2010, the BIA examined the language of the statute and also the legislative history and intent. The Board also reviewed the regulations promulgated for section 245(i) by the government. The conclusion is that section 245(i) does allow applicants who had engaged unauthorized employment to apply for adjustment of status if they are otherwise eligible.

Conclusion
Although these exceptions of law permit a foreign national who have engaged in unauthorized employment to apply for adjustment of status, it does not mean that their green card applications will always be approved. Adjustment of status is a discretionary application and the U.S. government may still deny an adjustment application if there exists serious immigration violations and other negative aspects in the case. One must proceed carefully and file substantial supporting evidence to support an adjustment application.

(Immigration laws and policies change regularly.  If you have any questions regarding this article, please visit www.1visa1.com to schedule a legal consultation.) 

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 any other person in the U.S. Naturally, many of them are going to be eligible to apply for an immigrant visa through a family relationship or a job offer.  However, due to their questionable immigration status, the law may not allow them to apply for adjustment of 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 unlawful 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 ("EWI"), 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 (which used to be $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. 

For example, Jose 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), Jose 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). 

Spouses and children of 245(i) eligible individuals may also obtain benefits under the law.  However, those who become spouses and children of an eligible applicant after April 30, 2001 can only apply for adjustment with the principal applicant and are not independently grandfathered.  Even though they may not be considered grandfathered, they may still be able to apply for permanent resident status as dependants of a grandfathered principal applicant under Section 203(d) of the Immigration Act.

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, stowing away, etc.  However, absent other major changes in the current immigration system, section 245(i) remains the most important tool for many individuals who have fallen out of immigration status to apply for a green card, provided that they meet all the legal requirements.

(Immigration laws and policies change regularly.  If you have any questions regarding this article, please visit www.1visa1.com to schedule a legal consultation.)