Can I Get a Green Card under 245(i)
Section 245(i) is an amendment to the adjustment of status provisions of the Immigration and Nationality Act (INA), first introduced in 1994. Adjustment of status means applying for permanent residency, being interviewed and being approved without leaving the country.
Eligibility had previously only been available for applicants who entered the U.S. lawfully; 245(i) allowed a foreign national who entered without inspection or overstayed a visa to adjust status if a visa petition was filed on their behalf by an employer or family member, and they met all of the other statutory requirements for adjustment. They were also required to pay a $1,000 penalty.
The amendment became effective on October 1st, 1994 and was set to expire on October 1st, 1997. Congress extended the application period twice, in 1997 (with a sunset date of January 14th, 1998) and 2000 (with a sunset date of April 30th, 2001)
Was 245(i) a form of Amnesty?
No. The limited purpose of 245(i) was to create a way for people who had entered without inspection to adjust their status, if they had either a Labor Certification, Petition for Alien Relative (I-130), or Petition for Alien Worker (I-140) filed on their behalf before the sunset date.
It essentially cured an unlawful entry or visa overstay in cases where that was the only bar to adjustment. A person still had to have an employer or family member file a petition on their behalf. Based on amnesty programs that have existed in the past, amnesty would be a more far-reaching relief, where most grounds of inadmissibility would probably be waived and employer or family petitioners would not be required. Section 245(i) eligibility also had no bearing on unlawful presence, which would continue to accumulate while a petition is pending.
Which cut off date determines eligibility?
Since the cutoff date was extended to April 30th, 2001 that date is now the final eligibility date, so an approvable petition filed before then meets the initial eligibility threshold. However, the LIFE Act of 2000 which provided that last extension also added a caveat: if your petition was filed between January 15th, 1998 and April 30th, 2001 you had to prove that you were physically present in the U.S. on December 21st, 2000, the effective date of the LIFE Act.
So anyone could adjust as long as they had petitions filed for them before those cut-off dates?
Certainly not! 245(i) only waives the general requirement that a person lawfully enter the U.S. in order to adjust status. An applicant still had to meet all the other admissibility requirements, including demonstrating they would not be a public charge, not have a serious criminal history, not have been previously ordered deported, and not have any communicable diseases. They also had to show that the petition was “approvable when filed”, which according to the regulations at 8 C.F.R. § 1245.10(a)(1)–(3) means “properly filed”, “meritorious in fact,” and “non-frivolous.”
If a valid petition is later canceled by an employer or a family sponsor is it still considered “approvable when filed”?
Yes. If the petition realistically could have been approved on the day it was filed (in a perfect world where USCIS approves things on the day you file them) then revocation by an employer or family petitioner or an eventual denial by USCIS still preserves your 245(i) eligibility for a future application.
Let’s say you are an engineer. You have all of the requisite degrees and qualifications for that profession. You came to the United States on June 7th, 2000 on a H-1B visa, your employer decided to file a Labor Cert on your behalf (the first step in most employment based green cards) and they did so on January 31st, 2001. You were physically in the U.S. for that entire period. But your employer goes out of business on June 1st, 2001, before the Labor Cert is approved. You decide not to leave the U.S. and in 2004 a second company offers to sponsor you. Are you 245(i) eligible, such that Company 2 can sponsor you and you can adjust without leaving the U.S.?
On these facts, yes!
- An employer filed a Labor Cert on your behalf before April 30th, 2001;
- The Labor Cert was “approvable when filed” since you were qualified for the position, the employer genuinely had a position for you to fill, and (presumably) no other qualified U.S. applicants were available;
- You were physically present in the U.S. on December 21st, 2000 (note: only physical presence on THAT day is required, in our hypothetical scenario you would still be eligible if you traveled home any number of times in 2000 as long as you were here on December 21st, 2000)
Therefore, assuming Company 2’s Labor Cert and I-140 are approved, you would be eligible to submit an application to adjust status (along with the $1,000 penalty!) since you would be “grandfathered” by the January 31st, 2001 petition.
An example of a petition that would not be considered “approvable when filed” would be one in which a U.S. citizen is paid to marry a foreign national “for papers”. The couple do not live together, have no intention of ever doing so, and have no documents showing either commingled finances, a common address, or even that they have met more than that one time at City Hall. They submit nothing with the I-130 but the marriage certificate and filing fee. Even in that perfect parallel universe where USCIS approves applications on the same day, it is extremely unlikely that any USCIS officer would ever approve such a petition, and accordingly it could not be used to create adjustment eligibility on a future (non-frivolous) application.
Can someone still use 245(i) in 2019?
Yes. If you were grandfathered in by an approvable, pre April 30th 2001 petition but never adjusted status, 245(i) eligibility would still attach to an adjustment application filed today.
Will 245(i) ever be extended?
Only through an amendment passed by Congress. It has been attached to various immigration-related Bills presented to the House over the years, but so far has not been passed.
By-Alexandre Law Firm