Are There Green Card Options When I have Overstayed My Visa? What is the 245i Waiver and How can it Help Me?

What is 245i? Can it help me get a green card?

INA §245(i) is a provision in the Immigration and Nationality Act of the United States, which allows certain persons who have an immigrant visa immediately available but entered without inspection or otherwise violated their status to adjust status in the United States.

The provision, which sunset on January 14, 1998 was revived under the LIFE Act, which extended INA §245(i) to April 30, 2001. INA 245(i) is now expired except for those aliens who are already grandfathered.

Who is already grandfathered?

The provision covers individuals who:

  • Entered the United States without inspection;
  • Worked in the United States without authorization;
  • Failed to maintain continuous lawful status;
  • Entered the Visa Waiver Program;
  • Entered as a foreign crewman; or
  • Entered as a foreign traveler in transit without a visa.

In addition the applicant must also be a beneficiary of a properly filed and approvable when filed:

  • I-130 Family Petition
  • I-140 Employment Petition;
  • I-360 Special Immigrant Petition;
  • I-526 Entrepreneur Petition filed with immigration on or before April 30, 2001; or
  • Application for labor certification correctly filed with the Department of Labor on or before April 30, 2001.

Properly filed means that the immigrant visa petition was received by INS prior to the close of business on or before April 30, 2001, or if mailed, was postmarked on or before April 30, 2001; and the immigrant visa petition contains the names of the petitioner and the beneficiary, the proper fee, and the signature of the petitioner.

Approvable when filed means the petition was filed properly; it was meritorious in fact; it was not fraudulent; and at the time of filing, the beneficiary had the appropriate family relationship or employment relationship that would support the issuance of an immigrant visa.

How do I know if an immigrant visa is immediately available to me?

An immigrant visa is immediately available to immediate relatives of United States Citizens. This means that your U.S. Citizen spouse, parent or child over 21 years old has filed an immigration petition on your behalf and the petition has been approved.

For those who are not immediate relatives of U.S. citizens, and have had a relative or employer file a petition on their behalf and this petition has been approved, you can look at the Department of State’s Visa Bulletin page which indicates visa availability. If the Priority Date on your Approval Notice is earlier than the date listed, then a visa is available.

To learn more about how to read the Visa Bulletin page, click here.

How do I know if I am eligible?

First, make sure that an immigration petition or labor certification was filed on your behalf on or before April 30, 2001.

Second, check to see whether you fall within one of the categories that is covered under the provision. For example, those who entered the United States on a tourist visa, overstayed and worked without authorization are covered under this provision.

Third, determine if a visa is immediately available to you or if there is a possibility that a visa will be available for you in the future. For example, did you recently marry a United States citizen who filed an immigrant petition for you? Or did you recently become a recipient of an approved employment-based petition? If so, then you may qualify for adjustment of status under INA 245(i).

What do I need to adjust status?

You need to gather all your relevant documents, including the receipt or approval notice that grandfathered you into the provision; documentation showing that a visa is immediately available such as approval notice; immigration fees, including the $1,000 penalty fee; and proof of physical presence in the U.S. on December 21, 2000, if the qualifying visa petition or labor certification was filed after January 14, 1998. This list is not exhaustive. Click here for more information.

This process can get quite complicated and document-intensive. If you feel that you qualify for this relief, consult with an immigration attorney who can assess any possible issues that may come up during the process.

For more practical information and legal advice, contact Scott Legal, P.C. Call 212-223-2964 or email for a consultation.

Angela Antonia Torregoza, Esq. is an Associate Attorney at Scott Legal, P.C. She can be reached at 347-983-0082


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