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Adjustment of Status under the benefit of section 245(i) of the Immigration and Nationality Act.

I currently have no legal immigration status in the United States and after years of working with my current employer, my current employer wants to help me obtain my green card. Is it true that I might be able to obtain my green card through a process known as adjustment of status under a special law known as 245i?

In 1994 Congress enacted a law creating a path for a noncitizen to obtain a green card without having to leave the United States  that was otherwise unavailable because  the noncitizen was present in the United States without any legal immigration status. The purpose of the law was to allow families to avoid the long periods of separation required to go through the green card process from outside the United States. This law is identified as section 245(i) of the Immigration and Nationality Act.

Filing before one of the two sunset dates.

In your case, we would have to determine if a proper petition was filed on your behalf in the past pursuant to the requirements of section 245(i).  Section 245(i) allows for eligibility for adjustment of status in one of two ways. The first way you will qualify for adjustment pursuant to section 245(i) is if you had a previous immigration petition such as an I-130, I-140, I-360 or I-526 petition properly filed on your behalf with the immigration service, “USCIS” or a labor employment certification, form ETA-750 filed on your behalf before the Department of Labor on or before January 14, 1998. The second method to qualify is if either an immigration petition or labor certification was filed on or before the second sunset date of April 30, 2001 and where the noncitizen can prove physical presence in the United States on December 21, 2000.

Petition must have been properly filed and approvable when filed.

Properly filed means that the petition was filed on or before the January or April sunset dates, with the proper filing fee with respect to the immigration petition and approvable when filed meaning that the noncitizen was actually eligible under the immigration law to have the immigration petition or labor certification filed on behalf of the noncitizen. If the filing was properly made, it will not matter if the petition was later terminated or denied as long as the reason for termination or denial was not based on the noncitizen not being an eligible beneficiary at the time of filing.

For example, consider a family based I-130 petition filed by a legal permanent resident parent for an adult daughter. If at the time of filing, the daughter was legally married, such a petition would not be considered approvable when filed because a legal permanent resident cannot file an I-130 petition for a married son or daughter. Since the I-130 would not be considered approvable when filed, the daughter cannot benefit from section 245(i) to adjust status within the United States in the future. However if the daughter was not married at the time of filing, she will benefit from section 245(i) and she can either obtain the green card waiting for her turn in line from her parent’s petition or obtain the green card based on a petition filed by a legal permanent resident or U.S. Citizen spouse.

If you qualify for adjustment of status pursuant to section 245(i), you will be required to pay an additional $1000 fee over the regular application fees charged by USCIS for an adjustment of status application.

I had entered around 1999 on a temporary work visa with the understanding that my former employer was going to help me obtain a green card. I have a copy of a form ETA 750 filed by my former employer with a stamp showing receipt by the Department of Labor on January 10, 2001. Will this qualify me for adjustment of status under section 245(i)?

Most likely yes since it appears that the proper form was filed with the Department of Labor before one of the two sunset dates. However, remember that since this application was filed after the January 1998 sunset date, you will be required to prove physical presence on December 20, 2000.

I never left the United States since I entered in 1999, but I do not have any way of proving that I was present in the United States on that exact date. Will this disqualify me?

Not necessarily. Although having documentation showing you were present in the United States is ideal, you can still prove physical presence by providing as much documentation as possible demonstrating you were present in the United States close to and through the December 20, 2000 date.

When I entered the United States, I was married, but entered the United States without my wife. My wife would visit me every year until she stayed permanently in United States in August of 2001. We also had a child together in February of 2001. Will my wife and child be able to adjust with me?

 As derivative beneficiaries, they will be able to benefit from section 245(i) as well and adjust with you through your current employer’s petition. However, keep in mind that if your child ages out turning 21 years old before obtaining the green card, your child will not be able to obtain the green card through your current employer’s petition. However, if your child ages out, your child can still benefit from section 245(i) in the future through another petition since your child was born before the April 30, 2001 sunset date. This means that if your child marries a U.S. Citizen or legal permanent resident, your child can adjust status under section 245(i) as the primary beneficiary of the spouse’s petition instead of as a derivative of your employer-based petition.

Keeping this second option in mind for your child, even if your child turns 21, there is a law known as the Child Status Protection Act, “CSPA” that may allow your child to keep derivative status through  your employer’s petition despite aging out because CSPA allows an age reduction calculation under certain circumstances that should be considered before concluding that your child has aged out. A discussion of the CSPA age reduction calculation can be viewed by clicking here.

Will my wife and child still benefit from section 245(i) even though they were not present in the United States on December 20, 2000?

They will not need to prove physical presence, but they will likely have to prove your physical presence on December 20, 2000.

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