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Section 245(i): What is Immigration and Nationality Act Section 245(i)

Section 245(i): What is Immigration and Nationality Act Section 245(i)

What Is Immigration and Nationality Act Section 245(i)?

All nonimmigrants in the U.S. that are on a temporary visa or green card and looking to become lawful permanent residents must follow a structured path to get there. If an individual attempts to stay in the U.S. without the proper authorization, they may encounter severe repercussions. The Immigration and Nationality Act (INA) is central to current immigration law. It has hundreds of sections with subsections that help guide individuals through the immigration process. One important subsection specifically designed for those nonimmigrants who wish to become lawful permanent residents is Immigration and Nationality Act Section 245(i).

Immigration and Nationality Act Section 245(i)

Immigration and Nationality Act Section 245(i) is a part of immigration law that provides an opportunity for certain undocumented immigrants to adjust their status and become lawful permanent residents. Even if you violate your status, overstay, or enter the U.S. unlawfully, you may be eligible to receive a green card under Section 245(i).

INA Section 245(i) protects those who had a relative or employer file a visa petition or labor certification for them before April 30, 2001. This section also protects minors if their parents had a standing visa petition or labor certification. Valid visa petitions include forms I-130 and I-140.

If the certification or visa was filed sometime between January 15, 1998, and April 30, 2001, applicants must also have also been present in the U.S. on December 21, 2000. This is the day when the final extension for Immigration and Nationality Act Section 245(i) was signed into law. This final extension is called the LIFE Act (see below).

Why Was the 245 Immigration Law Created?

Created in 1952, Section 245 was included in the initial INA, with the goal of providing individuals admitted as nonimmigrants to the U.S. a route to adjusting their status. This opportunity allows them to apply for permanent lawful status without having to leave the country and come back—provided they are eligible for a green card and one is available. INA Section 245 lets nonimmigrants living in the U.S. stay with their family and work while completing a lawful adjustment process. At first, individuals who were lawfully paroled or admitted into the U.S. were the only ones allowed to adjust under Section 245.

In 1994, Section 245(i) of the INA was enacted by Congress, extending eligibility for undocumented immigrants. Even immigrants who were not lawfully admitted to the U.S. were able to adjust—as long as they had a valid petition submitted on their behalf before the INA deadline. This also applied to immigrants who were employed without authorization or weren’t lawful at the time when they applied.

Immigration and Nationality Section 245(i) is particularly important because it acts as a practical option to correct unlawful status. Especially in 1996, when the Illegal Immigration Reform and Immigrant Responsibility Act was implemented. This act punished individuals who were in the U.S. without proper authorization by barring them from entering the country for several years after being forced to leave. Potentially facing these consequences discouraged many undocumented immigrants from attempting a lawful status adjustment.

Applying for adjustment through Section 245(i) prevents immigrants from having to leave the country to secure a green card. This protects them from the bars and punishments that would keep them overseas if they couldn’t successfully get a waiver.

Who Is Eligible to Adjust Under Section 245?

If a family- or employment-based immigrant petition was submitted on their behalf before or on April 30, 2001, undocumented immigrants are eligible to receive a Section 245(i) green card. The immigrant must also be the beneficiary of an immigrant petition. Applicants must be in the U.S. when they file and be admissible or have inadmissibility waived.

Though it can help individuals become permanent residents in the U.S., Immigration and Nationality Act Section 245(i) still requires immigrants to take all the normal steps an individual must in order for a green card to be available. They must still undergo the process of submitting biometric information, passing security and background checks, and paying all necessary fees. United States Citizenship and Immigration Services (USCIS) or an immigration judge is required to determine whether an individual deserves discretion.

Additional situations in which you may be eligible under Section 245(i) immigration laws include the following:

  • The original petitioner dies
  • The petitioning family member divorces you
  • The petitioner or sponsoring employer withdraws the petition or labor certification
  • The petitioner or sponsoring employer cannot otherwise maintain the application
  • The employer who originally filed Form 1-140 or the labor certification is no longer in business

If the petition or labor certification was deemed as “approvable” at the time it was filed, you should not lose your 245(i) eligibility. As long as (1) the circumstances changed because of something you couldn’t control—as opposed to the mistaken merits of your initial petition—and (2) the petition was filed before the LIFE Act deadline, there should be no trouble.

What Is the LIFE Act?

The LIFE Act, or Legal Immigration Family Equity Act, is an important piece of legislation that changed the required filing date to April 30, 2001, and required applicants to be in the U.S. on December 21, 2000, when the LIFE Act first went into effect.

In 1994, Section 245(i) was temporary and time-limited. This meant you could only adjust to permanent resident status lawfully if your immigrant petition was submitted and approved by October 1, 1997. Congress extended this filing deadline multiple times.

In 1998, Congress lifted the deadlines for petition adjudication, meaning an individual would be eligible as long as they had a petition filed before the deadline on January 14, 1998.

When the LIFE Act was passed in 2000 and the deadline was extended to April 30, 2001, Section 245(i) was also expanded to include many immigrant categories that were previously excluded. The LIFE Act did however add a requirement that the applicant must be present in the U.S. on December 21, 2000. There have been no additional date extensions since.

How to Qualify Under INA Section 245(i)

There are no special directions to apply for the Section 245(i) adjustment of status. Just as you would normally apply, submit a Form I-485 and pay the filing fee. There will be an additional fine, but it’s a small price to pay compared to traveling all the way to your country of origin and then back to the United States—not to mention any lost income if you were in the U.S. on a temporary employment-based visa.

What Would Happen if Congress Updated 245(i) Again?

As the filing deadline for the LIFE Act gets further and further away, fewer immigrants are able to access the benefits of INA Section 245(i). As they did with the LIFE Act, Congress could extend this deadline at any moment. Or they could eliminate deadlines altogether for those who pay the penalty and meet all other requirements for adjustment.

If Section 245(i) were updated, millions of undocumented immigrants could have an opportunity to legally adjust for pathways for which they are already eligible. This would allow individuals to pursue citizenship without needing to separate their families and/or abandon their communities.

This could also minimize the number of undocumented immigrants who are barred from returning to the U.S. as punishment for overstaying or violating their temporary visas.

Contact Scott D. Pollock & Associates P.C. for Legal Assistance

There are many different aspects of immigration law you should consider when applying to be a lawful permanent resident. USCIS language is not always accessible to individuals who do not speak English as their first language. To ensure that you cover all of your bases, hire an immigration lawyer who can interpret regulations and help you gather the necessary information.

Here at Scott D. Pollock & Associates P.C., we have a team of experienced attorneys who will help you determine whether or not you qualify for adjustment of status under Immigration and Nationality Act Section 245(i). If you believe you qualify but don’t know how to go about communicating that information to USCIS, we can help you.

Reach out to our law firm today for legal assistance from immigration lawyers with a strong track record of success. The longer you wait, the higher the chance you will experience unfavorable consequences. Don’t hesitate, contact us to set up a consultation and start your lawful adjustment process today.

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