Section 245(i) of the immigration law allows certain persons who normally would be ineligible to adjust their status to permanent residence in the United States to do so under certain conditions. When this section of law was last extended in December 2000, we wrote the following set of Frequently Asked Questions.
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Q1. I’ve heard that a new law was recently passed by Congress which would reauthorize section 245(i). What is section 245(i)? (§ = Section)
A. §245 of the immigration law allows persons to become permanent residents without leaving the U.S. through a process called adjustment of status. Generally, persons who entered the U.S. without being inspected by an USCIS officer, who have ever been unlawfully employed in the U.S. or who failed to always maintain lawful status in the U.S. are barred from adjusting their status in the U.S. (There are certain exceptions to the last two bars for “immediate relatives” of U.S. citizens and for certain EB applicants.)
§245(i) was first added to the law in 1994 to allow persons who qualify for green cards, but not for adjustment of status, to be able to adjust their status in the U.S. upon payment of a fine (currently $1,000). Congress phased §245(i) out of the law on January 14, 1998. However, persons who had already qualified under the law as of that date were “grandfathered” into the benefits of §245(i) for the rest of their lives. The problem was that hundreds of thousands of otherwise qualified persons who missed the January 14, 1998 deadline cannot adjust status in the U.S., and cannot return to their countries to obtain green cards without being subject to either a three or a ten-year bar from returning to the U.S. These persons (You may be one of them!) have been in a state of legal limbo since 1998.
Congress gave a holiday present to hundreds of thousands of potential immigrants on December 15, 2000 when they extended the grandfathering date of §245(i) to April 30, 2001. Not only does this extend the benefits of §245(i) to persons who had labor certifications or visa petitions (I-130, I-140 or I-360) filed on their behalf between 1998 and 2000, but it gives persons over four months AFTER the passage of the law to qualify for the benefits of §245(i).
Q2. What must I do to qualify for §245(i)?
A. A person with a labor certification or a visa petition filed on their behalf on or before January 14, 1998 is qualified for the benefits of §245(i). Under the new law, a person who has a labor certification or visa petition filed on their behalf after January 14, 1998, but on or before April 30, 2001, is also qualified for the benefits of §245(i) but only if they were physically present in the U.S. on the date of enactment of the new law (December 21, 2000).
Q3. Does this mean that I must have been lawfully in the U.S. on December 21, 2000?
A. No, merely that you were present, legally or illegally, in the U.S. on that date.
Q4. What exactly do I have to do to qualify for the benefits of §245(i)
A. You must have either an employer or a relative submit a labor certification or a visa petition on your behalf by April 30, 2001. It is not necessary that the Labor Department or the USCIS approve your application or petition by this date, only that it be filed.
For example, there is a tremendous labor shortage in the U.S. in a wide variety of occupations. Whether you work as a nanny or a rocket scientist, a nurse or a professor, a mechanic or an engineer, if your employer (or prospective employer) is unable to find a U.S. worker to fill your job, you may be eligible for labor certification.
Also, if your brother, sister, father, mother, adult son or daughter, or your spouse is a citizen, or perhaps even a permanent resident, they should immediately submit a petition on your behalf, no matter what the waiting time is in that particular category. The purpose of filing such a petition is to qualify you for the benefits of §245(i).
U.S. citizens may petition for their spouses, married or unmarried sons and daughters of any age, parents, and brothers and sisters. Permanent residents may petition for their spouses and their unmarried sons and daughters of any age (This includes sons and daughters who are divorced or widowed).
Q5. Do I have to adjust status in the same category that I was petitioned for?
A. No. Let’s assume that your brother (or your spouse’s brother) has recently naturalized. The published waiting time for a sibling petition varies from 12 to over 20 years on paper, and the actual waiting time is even longer. Still, you should have him petition for you and your spouse and children immediately. The filing of a simple petition will make your whole family eligible for the benefits of §245(i). You are not obligated to wait 12 to 20 years to obtain a green card. If you qualify for a green card through employment, through another relative, or even through the green card lottery, because you are qualified under §245(i), you will be able adjust for status for permanent residence much more quickly. However, if you adjust your status based on a visa petition which was not the original basis for your being eligible to adjust status under §245(i), you must use your new priority date.
Q6. If my wife’s relative files a petition for her on or before April 30, 2001, can we both qualify for permanent residence based upon a labor certification and visa petition filed after that date? How about my children? Once they turn 21 years of age, they won’t be entitled to any benefits based on this petition, will they?
A. You and your children are considered to be “derivative beneficiaries” of the petition filed by your wife’s relative on her behalf. This entitles not only your wife, but you and your children to the benefits of §245(i). If later on, you qualify for a green card based upon your job, a future job, a petition filed by one of your relatives after April 30, 2001, or if you win the green card lottery no matter how far in the future, you and your family can still adjust status under §245(i).
Even your children who “age-out” by turning 21, or by marrying, will still be entitled to the benefits of §245(i) if they were “derivative beneficiaries” of a visa petition filed by your wife’s relative on or before April 30, 2001.
Conversely, if you and your wife divorce, not only will you and your children be eligible for the benefits of §245(i), but so will each of your new spouses and children, as long as the new relationships are in place prior to the time you or your ex-wife adjust status.
An INS Memorandum, dated June 10, 1999, provides excellent guidance in such situations.
Q7. What happens if my labor certification is not approved? Or if the employer goes bankrupt or withdraws my labor certification or visa petition? What happens if my relative dies? Am I still eligible under §245(i)?
A. Yes, the USCIS utilizes an “alien based” interpretation of §245(i). If a labor certification or visa petition was “approvable when filed”, you are entitled to the benefits of §245(i) even if the application/petition was never approved, was withdrawn, or the petitioner ceases to exist.
Filings that are deficient because they were submitted without fee, or because they were fraudulent or without any basis in law or fact, are not considered to be “approvable when filed” and confer no benefits under §245(i) .
Q8. If I qualify for the benefits of §245(i), leave the U.S. and return at a later time, will I still be entitled to adjust status in the U.S. in the future?
A. Yes. However, if you have been “unlawfully present” (a legal term of art – be sure to consult with an experienced immigration attorney) in the U.S. for 180 days or more, you may be subject to either a three or a ten-year bar to returning to the U.S. If this applies to you, DO NOT TRAVEL OUTSIDE THE U.S. UNTIL YOU BECOME A PERMANENT RESIDENT.
Q9. If I qualify for benefits under §245(i), when will my eligibility for being able to adjust status in the U.S. expire?
A. Never. Once you qualify for benefits under §245(i), your eligibility never expires. Of course, you must still qualify (through a relative, a job or the green card lottery) when you apply for adjustment of status. And you must be admissible to the U.S. If you have been convicted of a criminal offense, have committed immigration fraud, etc., you may be inadmissible.
Q10. I want to qualify for the benefits of §245(i). What should I do?
A. You need to move quickly to meet the April 30, 2001 deadline, and you can’t afford to make any mistakes. If the USCIS or the Labor Department returns your application because it was incomplete or because you made a mistake in completing the forms, you may lose your last best chance to qualify for benefits under §245(i) and to legalize your status in the U.S.
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Carl Shusterman served as an INS Trial Attorney (1976-82) before opening a firm specializing exclusively in US immigration law. He is a Certified Specialist in Immigration Law who has testified as an expert witness before the US Senate Immigration Subcommittee. Carl was featured in the February 2018 edition of SuperLawyers Magazine.
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