ILW.COM - the immigration portal Immigrant's Weekly

< Back to current issue of Immigration Daily < Back to current issue of Immigrant's Weekly

Section 245(i) - An Immigrant's Guide

by Carl Shusterman

Section 245(i) has allowed thousands of our clients to adjust their status to permanent residents without leaving the U.S. The basics of how section 245(i) works are simple. However, because there are a myriad of INS/USCIS memos on the subject, often this section of law can help you in ways that you never dreamed were possible.

Section 245(i) was first added to the law in 1994, and was renewed in 1997, and again in 2000 with an additional restriction. This section of law allows persons who would not normally be permitted to adjust their status in the U.S. because (1) they entered the U.S. without inspection; (2) because they overstayed their visas; or (3) because they worked without authorization in the U.S., to do so if they meet the following conditions:

Their employers submitted an application for labor certification for them or they were the beneficiary of an immigrant visa petition (either employment-based or family-based) prior to May 1, 2001; and

If the application or petition was filed on their behalf after January 14, 1998, they must have been physically present in the U.S. on the date section 245(i) was extended, on December 21, 2001; and

They must pay a fine, currently $1,000.

A few examples illustrate how section 245(i) operates:

EXAMPLE #1 - Juan, a citizen of Mexico, crossed the border illegally in 1999. In 2005, he married a U.S. citizen. Normally, he would be ineligible for adjustment of status since he did not enter the U.S. legally. He would have to be interviewed at the U.S. Consulate in Ciudad Juarez, Mexico. Since he has lived in the U.S. illegally for more than one year, he would be barred from returning to the U.S. for ten years unless he obtained a "waiver" of the ten-year bar by demonstrating to the USCIS that his wife would suffer "extreme hardship" unless a waiver was granted for him. This might be very risky for Juan, and if his waiver were denied, he would not be allowed to reenter the U.S. However, after questioning Juan further, we learned that his brother is a U.S. citizen and that he submitted an immigrant visa petition for Juan in December 2000. This means that Juan is 245(i)-eligible and, therefore, may adjust his status in the U.S. through his wife. He does not have to return to Mexico for his interview. He is not subject to the ten-year bar and does not have to apply for a waiver.

EXAMPLE #2 - Teresa, a citizen of the Philippines, entered the U.S. as a B-2 visitor in 2004. A nurse in her home country, she passed the NCLEX exam in the U.S. and was sponsored by a hospital shortly before her stay expired. However, because she had trouble passing the English exam on her first try, the USCIS denied her application for adjustment of status because she did not possess a VisaScreen certificate. When her lawyer, resubmitted her application for adjustment of status, the USCIS denied her a second time because they said that she did not qualify under section 245(k).

When we interviewed her, she neglected to complete the section of our "intake" application which concerned the immigration status of her parents. "My parents have never been outside the Philippines", she stated, "What difference does it make?"

As it turned out, it made all the difference in the world.

Teresa's uncle, now deceased, lived in New York and became an American citizen in 1982. Thrilled to be a U.S. citizen, he immediately petitioned for his sister, Teresa's mother, to become a permanent resident of the U.S. At the time that he did so, Teresa was a little girl, and qualified as a "derivative beneficiary" of her uncle's petition. Unfortunately, her uncle died in 1990, and so did his petition.

However, since the petition was filed prior on or before January 14, 1998, this allowed Teresa to file for adjustment of status a third time, this time under section 245(i). Teresa is now a lawful permanent resident of the U.S.

EXAMPLE #3 - Rakesh, a citizen of India, entered the U.S. in 1998 as an H-1B computer professional. His wife, Reshma, entered with him with an H-4 visa. In 2002, Rakesh's employer in Atlanta submitted a labor certification on his behalf. As soon as the labor certification was approved, his employer filed an I-140 petition for Rakesh which was also approved. Unfortunately, Rakesh was laid off his job in 2004. He not only lost his job, but lost his H-1B status as well. Over one year later, Rakesh found another job in Houston. However, since he had already used up his six years in H-1B status, he could not be sponsored for a new H-1B visa unless he left the U.S. for one year. If he did so, he would be subject to a ten-year bar to returning to the U.S. And how could his new employer in Houston sponsor him for PERM, an I-140 and an I-485 since he had been out-of-status for over one year and did not qualify under section 245(i)? Rakesh had posted numerous inquiries on message boards, and everyone told him that he was doomed, except for one person who advised him to divorce his wife and marry a U.S. citizen.

That was very poor advice. Not just for the obvious reasons, but because the solution to Rakesh's sorry state laid squarely in the hands of his wife, Reshma.

A potential employer in Boston had filed an application for labor certification and an I-140 for Reshma after her marriage to Rakesh, but before they arrived in the U.S. in 1998. After Rakesh was sponsored for an H-1B visa by the company in Atlanta, Reshma gave up on the idea of working in Boston. Nevertheless, the mere filing of the application for labor certification "grandfathered" Reshma under section 245(i), and the approval of the I-140 secured a priority date for her. Fortunately, she received a new job offer, and her employer obtained the approval of a PERM application and an I-140 for her. Even with the retrogression, she retained her original 1998 priority date, and she immediately applied for adjustment of status under section 245(i) with Rakesh as her derivative beneficiary. They both have EAD work permits, and have already been scheduled for their green card interviews.

About The Author

Carl Shusterman is a native of Los Angeles and a 1973 graduate of the UCLA School of Law. He served as an attorney for the Los Angeles office of the U.S. Immigration and Naturalization Service (INS) until 1982 when he entered the private practice of law. He is authorized to practice before the Supreme Court of California, the Federal District Court in the Central District of California, the U.S. Court of Appeals, Ninth Circuit and the Supreme Court of the United States. Mr. Shusterman is a former chairman of the American Immigration Lawyers Association (AILA), Southern California Chapter and served as a member of AILA's national Board of Governors (1988-97). He has chaired numerous AILA Committees, spoken at dozens of AILA Conferences and has contributed a number of scholarly articles to AILA's publications. Mr. Shusterman is a Certified Specialist in Immigration and Nationality Law, State Bar of California. He serves as a member of the Immigration and Nationality Law Advisory Commission for the State Bar. He is a member of the Executive Committee of the Immigration Section of the Los Angeles County Bar Association and of the American Bar Association. Mr. Shusterman is a frequent writer and lecturer on immigration law. Mr. Shusterman has testified as an expert witness before the Senate Subcommittee On Immigration in Washington, D.C.

The opinions expressed in this article do not necessarily reflect the opinion of ILW.COM.