Are all green card beneficiaries who qualify for a green card pursuant to section 245(i) of the Immigration and Nationality Act, required to pay the $1000 penalty fee?
It is always important to keep in mind that individuals who are living in the United States without status, are typically required to return to their country of origin for their final interview unless they qualify for an exception to the rule that will allow applying for their green card through the adjustment of status process. One such exception to the rule is the adjustment of status process pursuant to section 245(i) of the Immigration and Nationality Act, the “Act” which we discuss here. In most cases, noncitizens who qualify for 245(i) adjustment are required to pay a $1000 penalty fee in addition to the immigration processing fees.
Beneficiaries not required to pay the $1000 fee include children under the age of 17 or the spouses or unmarried children of an individual who obtained temporary or permanent resident status under one of the laws pertaining to legalization including:
Legalization under Section 210 of the Special Agricultural Worker Act:
Previously available to certain eligible noncitizens who performed agricultural work;
Legalization under Section 245A of the Act:
Previously available to certain eligible noncitizens who entered into the United States before January 1, 1982 and have resided continuously in an unlawful status up and through the date the application is filed;
Legalization under Section 202 of the Immigration Reform and Control Act of 1986:
Previously available to certain eligible noncitizens nationals from Cuba or Haiti, who arrived in the United States before January 1, 1982.
Furthermore, the spouse or child must have entered the United States before May 5, 1988, and resided in the United States since May 5, 1988 and had applied for benefits under section 301(a) of the Immigration Act of 1990. Section 301(a) benefits provided renewable periods of protection from removal and employment authorization for the eligible spouses and children of legalized aliens.
Basically, other than currently being a minor under 17 years of age, if you were the spouse or unmarried child of a family member on May 5, 1988 that received temporary or permanent resident status pursuant to one of the above mentioned programs, and meet the entry and residence requirements, you will not have to pay the $1000 penalty fee assuming you qualify for adjustment of status pursuant to Section 245(i) of the Act.
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