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.

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 the sponsorship.  Five years later, Jose 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 Jose 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 dependents 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 provision 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.)