245(i) Adjustment of Status
Every so often, Congress gets its act together and passes legislation that recognizes the hardships immigration law imposes on many families. Such was the LIFE Act, passed in 2000, which attempted to alleviate the burden imposed on families by the introduction of yearly quotas. Because only a certain number of people were allowed to immigrate from any particular country, huge backlogs had developed for certain countries. People were filing petitions to adjust their status, but before they reached the front of the line, they were losing status. That was an unintended consequence of the quotas.
Through Section 245(i) of the LIFE Act, a path opened up for people who otherwise would be ineligible for a green card. Thus, these applications have come to be known as 245(i) adjustments. While no new applications are being accepted through 245(i), there are still plenty of people who have filed their application and are waiting for a visa to become available. Once their visa becomes available, they will be able to adjust their status.
Eligibility for 245(i) Adjustment
As with so many aspects of immigration law, 245(i) adjustment only works if you meet the exact requirements.
- You must have filed an immigrant visa petition (I-130 or I-140) or a labor certification (Form ETA-750) by April 30, 2000.
- If your application was filed between January 15, 1998 and April 30, 2001, you must have been physically present in the United States on December 21, 2000. If you submitted an application before this time period, the physical presence requirement doesn’t apply.
- You are currently the beneficiary of a qualifying immigrant petition. That can be the original I-130, I-140, or through another qualifying petition filed later.
- A visa must be immediately available for you.
- You must be admissible.
In addition to submitting the regular application, you must submit a Supplement A to I-485 and pay $1000 penalty.
245(i) is Not a Free Pass
Once a visa becomes available to 245(i) applicants, you can adjust your status. However, until then, you are still vulnerable to being deported for unlawful presence or unauthorized entry. In addition, if you leave the country before your application is processed, you are still subject to the 3 or 10 year bars for unlawful presence. You and your employer are also still subject to employment violations if you are caught. An 245(i) application does not give you a free pass.
A Change in Circumstances
Especially when the wait time for a visa is ten to twenty years, life circumstances can change. Death, divorce, or an employer going out of business can all potentially affect a pending application. USCIS will consider your individual circumstances and the reasons why your original application might no longer be valid and grandfather you in. If your application was approvable when filed, you should still be eligible, but it would be wise to consult a good immigration attorney if you face extenuating circumstances.
Another possibility is that your family circumstances might change. For example, your brother or sister may have filed the original petition, but over the course of ten or twenty years of waiting, your US citizen children may have grown up and now be eligible to petition for you. If that turns out to be the case, you become an immediate relative, jump to the front of the line, and have a visa immediately available to you. You must, however, submit a new petition.
Although the window for LIFE Act adjustments closed in 2000, there are plenty of people who waiting to benefit from its provisions. And we can always hope that Congress will come together again and extend relief again.
Interested in how a 245(i) looks in real life? Read Concepcion and Miguel’s story about their family was reunited and they finally got green cards with the help of our best immigration lawyers in Seattle.Tags: 245(i), adjustment of status, green card