What is INA Section 245(i)?
Typically, one who is in the U.S. unlawfully must leave the U.S. and apply for an immigrant visa at a U.S. embassy or consulate abroad. However, if one has been in the U.S. unlawfully for over 180 days, he/she may be barred from reentering the U.S. for three or ten years, depending on the length of their unlawful presence. This is often referred to as the three- and ten-year bars. Section 245(i) of the INA (Immigration and Nationality Act) is a provision of immigration law that allows people to apply for an adjustment of status and obtain their green card without having to leave the United States. Those who are eligible to do so can apply even if they have entered the country illegally, worked without authorization, or failed to maintain lawful status after entry. In 1994, Congress passed this section in the INA.
Who Is Eligible to Adjust Status Under Section 245(i)?
To be grandfathered one has to be a beneficiary of a labor certification application (form ETA750), or an immigration visa petition, usually an I-130 or an I-140. To be eligible to be grandfathered one had to either have a labor certification application filed or the immigration visa petition filed between January 14th of and April 30th of 2001. Besides, one must prove physical presence in the US on or before December 21, 2000. Having any past criminal charges can disqualify one from becoming a permanent resident and will, thus, disqualify one from utilizing section 245(i). Lastly, Form I-485A with an application packet must be filed and a $1,000 penalty fee must be paid to fully qualify for status adjustment under 245(i).
Oftentimes, one of the most difficult parts of this process is determining whether or not a person is a beneficiary for 245(i) since there are several different ways to be one. The simplest way is to be directly named as the beneficiary of an I-130. Another is to have a spouse, or ex-spouse, who was named as the beneficiary of an I-130. Being the child of someone who is a beneficiary of an I-130 also makes one a beneficiary, but only if said person was unmarried and a minor when the I-130 was filed. If a person is a beneficiary of section 245(i) and can fulfill all of the other eligibility requirements, they will be able to successfully apply for an adjustment of status.
How Can an Immigration Attorney Help?
U.S. immigration law can be complex, and every individual’s situation is unique. An immigration lawyer can provide expert advice tailored to your specific circumstances by evaluating your eligibility to apply for adjustment of status under Section 245(i) and obtain green card after reviewing your situation. Further, if there are any complications or issues such as previous immigration violations or criminal charges, an immigration lawyer can help you address them and advise you on the best course of action. Every case is unique and legal advice can change based on individual circumstances and changes in law. Always consult with an immigration lawyer for up-to-date information and advice.