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

For an undocumented immigrant who entered the U.S. unlawfully or overstayed a visa, the usual path to a green card runs through a consulate abroad; but leaving the country can trigger bars that keep a person out for years. Immigration and Nationality Act Section 245(i) offers a narrow exception. It allows certain individuals to adjust to lawful permanent residency from within the United States, despite a past status violation, as long as they were covered by a qualifying petition filed before a hard cutoff more than two decades ago.

The benefit of  245(i) attaches to people who were named in an immigrant visa petition or labor certification filed on or before April 30, 2001, and it can carry forward for life. For those who qualify, it remains one of the few tools that resolves an unlawful entry or overstay without a trip abroad.

 

 

Who Section 245(i) Protects

Section 245(i) protects people who were the beneficiary of a qualifying immigrant visa petition or labor certification filed on or before April 30, 2001. Qualifying petitions commonly include Form I-130 (family-based) and Form I-140 (employment-based), as well as a labor certification application. The benefit can extend to a spouse or child who was a derivative beneficiary of that petition, based on the relationship as it existed when the petition was filed.

Eligibility can survive a great deal of change. Even if the original petition was later denied, withdrawn, or abandoned, a person may still be “grandfathered in” as long as the petition was “approvable when filed”—meaning it was properly filed, based on a genuine relationship or job offer, and not frivolous. The grandfathered-in individual can then adjust status years later through an entirely different, currently valid petition.

One timing rule narrows the group further. If the qualifying petition was filed after January 14, 1998, the principal beneficiary must also have been physically present in the United States on December 21, 2000, the date the LIFE Act took effect. Derivative beneficiaries do not have to prove their own presence on that date, though they remain tied to the principal’s eligibility.

 

Why Section 245(i) Was Created

Section 245 entered the law with the original Immigration and Nationality Act in 1952, giving certain nonimmigrants a way to adjust status from inside the country rather than returning home to apply. At first, only people who had been lawfully admitted or paroled could use it.

Congress added Section 245(i) in 1994 as a temporary provision, opening adjustment to people who had not been lawfully admitted, including those who entered without inspection or worked without authorization, provided a qualifying petition had been filed on their behalf by the deadline. This provision was meant to expire, and Congress extended its filing deadline several times before settling on the current cutoff.

The provision took on greater weight after 1996, when the Illegal Immigration Reform and Immigrant Responsibility Act introduced the three- and ten-year bars to reentry. Under those rules, an immigrant who left the country to attend a green card interview abroad could be barred from returning for a significant period of time. By allowing eligible immigrants to adjust their status without leaving the country, Section 245(i) offers a way to avoid taking a trip that might otherwise trigger those bars.

 

 

Who Is Eligible to Adjust Under Section 245(i)?

An undocumented immigrant may be eligible to adjust under Section 245(i) if a qualifying family- or employment-based petition or labor certification was filed on their behalf on or before April 30, 2001, and they are currently the beneficiary of a valid petition with a visa available. Section 245(i) forgives an unlawful entry or overstay, but it does not erase other grounds of inadmissibility. An applicant with a criminal history or a prior fraud finding, for example, may still need a separate waiver to qualify.

Section 245(i) also does not shorten the rest of the process. Applicants still complete the standard steps: biometrics, security and background checks, and payment of all required fees. USCIS or an immigration judge decides whether to grant adjustment as a matter of discretion.

Grandfathering can hold up even when the original petition falls apart for reasons outside the applicant’s control. A person generally keeps 245(i) eligibility if:

• The original petitioner dies
• A petitioning family member divorces the applicant
• The petitioner or sponsoring employer withdraws the petition or labor certification
• The petitioner or sponsoring employer can no longer maintain the petition
• The employer who filed the Form I-140 or labor certification goes out of business

The key factor is that the petition was approvable when filed, and that any later change resulted from circumstances the applicant could not control rather than a defect in the original petition’s merits.

 

What Is the LIFE Act?

The LIFE Act, or Legal Immigration Family Equity Act, is the legislation that set the current 245(i) framework. Passed in late 2000, it moved the filing cutoff to April 30, 2001, and added the requirement that applicants relying on a petition filed after January 14, 1998 show physical presence in the U.S. on December 21, 2000.

The deadline had shifted before. When Section 245(i) was first enacted in 1994, eligibility depended on a petition filed by an earlier sunset date, and Congress extended that date more than once. The LIFE Act extended it a final time and broadened 245(i) to include immigrant categories that earlier versions had left out.

The April 30, 2001 cutoff has not moved since. No further extension has been enacted, which is why eligibility now depends entirely on petitions filed more than twenty years ago.

 

 

How to Qualify Under Section 245(i)

Applying under Section 245(i) follows the ordinary adjustment process with two additions. The applicant files Form I-485, Application to Register Permanent Residence or Adjust Status, together with Supplement A to Form I-485—the form specific to 245(i)—and pays a $1,000 penalty fee on top of the standard filing fees.

For someone who entered the country without inspection or overstayed a visa, that penalty is modest compared to the alternative: leaving the country to process abroad, risking the reentry bars, and losing income and time away from family in the U.S.

 

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

As the April 30, 2001 cutoff recedes, fewer people can still reach back to a qualifying petition, and the pool of eligible immigrants continues to shrink. Congress could change that. As it did with the LIFE Act, it could extend the cutoff, or it could remove the filing deadline altogether for those who pay the penalty and meet the other requirements.

Reopening 245(i) could give a large number of undocumented immigrants a way to adjust through petitions they are already eligible for, allowing them to pursue residency, and eventually citizenship, without separating families or requiring them to leave their communities. It would also reduce the number of people kept out of the country by the reentry bars that follow an overstay or unlawful entry.

For now, the law as written rewards anyone who may be sitting on an old, forgotten petition. A family member’s or employer’s filing from decades ago can still be the basis for adjustment today.

 

 

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

Determining whether an old petition still confers 245(i) eligibility is a complex process. Whether a decades-old filing was “approvable when filed,” whether a derivative relationship qualifies, and what current petition can carry the adjustment are questions that reward a careful review of the record. USCIS guidance is also not always accessible to those who do not speak English as a first language.

Scott D. Pollock & Associates, P.C. has over three decades of experience in immigration and nationality law, including adjustment of status under Section 245(i). Our immigration attorneys can review your history, determine whether you qualify, and prepare the filing. To discuss your situation, call 312.444.1940 or fill out our online contact form to set up a consultation.