Cecily Zamora
Section 245(i) of the Immigration and Nationality Act (INA) enables certain individuals who are present in the United States and who would not normally qualify to apply for adjustment of status to obtain lawful permanent residence (a green card). This includes those who have overstayed their visa, worked without authorization, or had false documents. To be eligible, individuals must have been physically present in the United States on December 21, 2000, and have had a qualifying immigrant petition or application for labor certification filed on their behalf on or before April 30, 2001. The process can be complex and requires careful analysis and preparation, and applicants may still be barred from adjustment if they have committed a crime or violated immigration law.
Characteristics and Values of Adjusting Status in the USA with 245(i) Law
| Characteristics | Values |
|---|---|
| What is 245(i) Law? | Section 245(i) of the Immigration and Nationality Act (INA), amended by the Legal Immigration Family Equity (LIFE) Act and LIFE Act Amendments of 2000 |
| Who is eligible? | Individuals who are present in the US but would not normally qualify to apply for adjustment of status in the US |
| Who is not eligible? | Applicants who have committed a crime or violated immigration law in some way |
| What does it enable? | Enables eligible immigrants to obtain lawful permanent residence without leaving the US and applying for an immigrant visa abroad |
| Who is eligible for this? | Eligible immigrants include those with valid family-based petitions or employment authorization documents but who have not yet obtained lawful permanent residence (a Green Card) |
| What is the key to adjustment of status? | Having a valid family-based or employment-based petition or application that was pending before April 30, 2001 |
| What is the deadline for physical presence in the US? | December 21, 2000 |
| What forms are required? | Form I-485, Application to Register Permanent Residence or Adjust Status, and Form I-485 Supplement A |
| What is the basis for adjustment? | A copy of the immigrant petition or labor certification or Form I-797, Notice of Action |
| What is the process? | File the forms correctly, submit them to USCIS for review, and wait for a decision |
| Can I work while my application is pending? | Yes, you may apply for employment authorization by filing Form I-765, Application for Employment Authorization |
| Can I travel outside the US while my application is pending? | It is not recommended, but if necessary, apply for an advance parole document by filing Form I-131, Application for Travel Documents |
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What You'll Learn
Adjustment of status and the LIFE Act
Adjustment of Status Under Section 245(i) of the Immigration and Nationality Act (INA) enables certain individuals who are present in the United States and who would not normally qualify to apply for adjustment of status to obtain lawful permanent residence (a Green Card). This is also known as the LIFE Act.
To be eligible, individuals must have been the recipient of a Form I-130 immigrant visa petition or Form I-140 immigrant visa petition filed with the INS on or before April 30, 2001, or have been the beneficiary of an assignment for workforce certification filed with the Department of Labor on or before April 30, 2001. They must also be physically present in the United States on December 21, 2000, if they were the beneficiary of a visa petition or labour certification application submitted after January 14, 1998, but before April 30, 2001.
The LIFE Act was enacted by Congress due to a class-action lawsuit filed against Immigration and Naturalization Services (INS) by organizations suing on behalf of those affected by the delay-ridden adjustment process. The LIFE Act gave immediate relief to those affected and provided a foundation upon which Section 245(i) adjustment of status was built. Under the program, adjustment applications were allowed to be filed even if the applicant was deemed ineligible because they had overstayed, worked without authorization, or had false documents. This allowed applicants to pay a fee and seek an adjustment of status in Austin, Texas, without having to leave the country, which would have jeopardized their ability to return legally.
The LIFE Act also allowed certain family members to remain legally in the country while their adjustment applications were pending. It made changes to laws surrounding immigration for family members of US citizens and Lawful Permanent Residents, as well as people eligible for employment-based immigrant visas, making it easier for family members and immigrant workers to move to and adjust their status within the United States.
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Requirements for adjustment of status
Section 245(i) of the Immigration and Nationality Act (INA) allows certain individuals who are present in the United States and who would not normally qualify to apply for adjustment of status to obtain lawful permanent residence (a "green card"). This includes individuals who have failed to continuously maintain lawful status since entry.
To qualify for this provision, you must meet the following requirements:
- Be the beneficiary of a labor certification application (Form ETA 750) or immigrant visa petition (Forms I-130, Petition for Alien Relative, or I-140, Immigrant Petition for Alien Worker) filed on or before April 30, 2001.
- Complete and submit Supplement A to Form I-485, Application to Register Permanent Residence or Adjust Status, along with your Form I-485.
- Be physically present in the United States on December 21, 2000, if you were the beneficiary of a visa petition or labor certification application submitted between January 15, 1998, and April 30, 2001.
- Have a valid family-based or employment-based petition or application that was pending before April 30, 2001.
- Be admissible to the United States or eligible for a waiver of inadmissibility or other relief.
It is important to note that even if you meet the above requirements, you may still be barred from adjustment if you have committed a crime or violated immigration law. Additionally, the adjustment application process can be complex and requires careful analysis and preparation. It is recommended to consult an experienced immigration attorney for guidance and to ensure all required documents are correctly submitted.
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Grounds for inadmissibility
Section 245(i) of the Immigration and Nationality Act (INA) enables certain individuals who are present in the United States and who would not normally qualify to apply for adjustment of status. This includes those who have overstayed their visa, worked without authorization, or had false documents.
However, there are still grounds for inadmissibility that would prevent an individual from adjusting their status under Section 245(i). These include:
- Criminal activity: Applicants who have committed a crime or violated immigration law may be barred from adjustment. This includes those who have worked in the United States without authorization from the USCIS. However, this requirement does not apply to close relatives of a U.S. citizen (parents, spouses, or unmarried children under 21 years old), international medical graduates, workers of international organizations, and their family members.
- Failure to meet filing requirements: To qualify for adjustment of status under Section 245(i), individuals must have a valid family-based or employment-based petition or application that was pending before April 30, 2001. They must also have been physically present in the United States on December 21, 2000. Any deficiencies in the filing, such as a lack of fees or original signatures, may disqualify the submission.
- Foreign policy consequences: An alien whose entry or proposed activities in the United States the Secretary of State has reasonable grounds to believe would have potentially serious adverse foreign policy consequences for the United States may be deemed inadmissible.
- Terrorist activity: An alien whom the consular officer or Attorney General has reasonable grounds to believe has engaged in terrorist activity, as defined by U.S. law, may be deemed inadmissible.
- Financial benefit from illicit activity: An alien who has obtained financial or other benefits from the illicit activity of an inadmissible alien and knew or reasonably should have known the source of those benefits may be deemed inadmissible.
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Application process and forms
To apply for a Green Card under Section 245(i) of the Immigration and Nationality Act (INA), you must meet the following criteria:
- You were physically present in the U.S. on December 21, 2000.
- You are the beneficiary of a qualified immigrant petition (Form I-130 or I-140) or application for labor certification (Form ETA-750) filed on or before April 30, 2001.
- You are currently the beneficiary of a qualifying immigrant petition or application for labor certification.
- You are admissible to the U.S. or eligible for a waiver of inadmissibility or other forms of relief.
- You have properly filed Form I-485, Application to Register Permanent Residence or Adjust Status, and Form I-485 Supplement A.
The process for applying for a Green Card under Section 245(i) involves the following steps:
- Check your eligibility: Review the requirements above and consult with an experienced immigration attorney to assess your eligibility and determine the best course of action.
- Gather the required documentation: This includes a copy of your immigrant petition or labor certification, proof of your physical presence in the U.S. on December 21, 2000, and any other supporting documents.
- Complete the necessary forms: Fill out Form I-485, Application to Register Permanent Residence or Adjust Status, and Form I-485 Supplement A. Ensure that all questions are answered accurately and completely.
- Submit your application: File your completed Form I-485 and Supplement A with the required supporting documentation to the appropriate filing address. You can find the direct filing addresses on the USCIS website.
- Pay the required fees: In addition to the standard filing fees, there is a $1,000 penalty fee for Section 245(i) adjustments. This fee is typically due when you submit your Form I-485A.
- Wait for processing: The processing times for Green Card applications can vary, so it is important to be patient and keep track of the status of your application.
- Respond to any requests for additional information: In some cases, USCIS may request further information or documentation. Ensure that you respond promptly and provide all the necessary details.
- Attend an interview, if required: In certain situations, you may be invited to an interview as part of the Green Card application process. Prepare for the interview by reviewing your application and supporting documents.
- Receive a decision: After reviewing your application and supporting documentation, USCIS will make a decision on your Green Card application. If approved, you will be granted lawful permanent residence in the U.S.
It is important to note that the above process provides a general overview, and individual circumstances may vary. It is always recommended to seek personalized advice from an experienced immigration attorney who can guide you through the specific requirements and procedures applicable to your situation.
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Eligibility and pathways to adjustment
Section 245(i) of the Immigration and Nationality Act (INA) allows certain unauthorized immigrants who are physically present in the United States to apply for lawful permanent resident status (i.e., a “green card”). This provision, which remains on the books but is rarely used due to the passage of a key statutory deadline, enables qualifying individuals to obtain lawful permanent residence regardless of how they initially entered the US or whether they maintained lawful status.
Under Section 245(i), qualified applicants can waive their immigration violation(s) and adjust their status upon payment of a $1,000 fee, which serves as a fine. To be eligible, an individual must be the beneficiary of a labor certification application (Form ETA 750) or immigrant visa petition (Forms I-130, Petition for Alien Relative, or I-140, Immigrant Petition for Alien Worker) filed on or before April 30, 2001. They must also complete Supplement A to Form I-485, Application to Register Permanent Residence or Adjust Status, and submit it with their Form I-485. Additionally, applicants must be physically present in the United States on December 21, 2000, if their petition was filed between January 15, 1998, and April 30, 2001.
Labor certifications or visa petitions filed to preserve an individual's adjustment eligibility under Section 245(i) must be "properly filed" (signed and submitted with the correct fees) and "approvable" (meritorious and non-frivolous) when filed. This means that, at a minimum, the filing must be timely (by April 30, 2001) and meet all applicable requirements. It is important to note that applicants who are out of status may not be allowed to remain in the US while their adjustment application is pending, and they may still be barred from adjustment even if they meet the above requirements if they have committed a crime or violated immigration law.
The LIFE Act, passed in 2000, provided immediate relief for those affected by the delay-ridden adjustment process and served as a foundation for Section 245(i) adjustment of status. It allowed applicants to pay a fee and seek an adjustment of status without having to leave the country, which would have jeopardized their ability to return legally. Additionally, the LIFE Act allowed certain family members to remain legally in the country while their adjustment applications were pending.
By extending or eliminating the filing deadline, Congress could make Section 245(i) accessible to more individuals, providing a pathway to citizenship for many immigrants living in the United States.
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Frequently asked questions
Section 245(i) of the Immigration and Nationality Act (INA) enables certain individuals who are present in the United States and who would not normally qualify to apply for adjustment of status to obtain lawful permanent residence (a "green card").
Eligible individuals include those who are the beneficiaries of a qualified immigrant petition (Form I-130 or I-140) or application for labor certification (Form ETA-750) filed on or before April 30, 2001. They must also have been physically present in the United States on December 21, 2000.
To apply for adjustment of status under Section 245(i), you must complete and submit Form I-485, Application to Register Permanent Residence or Adjust Status, along with Supplement A. You may also need to provide proof of your physical presence in the United States on December 21, 2000.
Yes, even if you meet the basic requirements, you may still be barred from adjustment if you have committed a crime or violated immigration law in some way. It is important to consult with an experienced immigration attorney to assess your eligibility.
Yes, you may apply for employment authorization by filing Form I-765, Application for Employment Authorization. You may also apply for an advance parole document by filing Form I-131, which will allow you to travel outside the United States temporarily while your Form I-485 is pending.
