Adjustment of Status Under INA §245(i)
INA §245(i) allows certain individuals to apply for Adjustment of Status in the United States even if they entered without inspection, worked without authorization, or fell out of status. If you are grandfathered under §245(i), you may be able to apply for lawful permanent residence without leaving the United States for consular processing.
What Is INA §245(i)?
Section 245(i) of the Immigration and Nationality Act is a grandfathering provision that allows certain immigrants to apply for Adjustment of Status in the United States even though they may not qualify under the normal adjustment rules.
In many cases, a person who entered the United States without inspection, worked without authorization, or fell out of status cannot simply file for a Green Card inside the United States. INA §245(i) creates an important exception. If the person is the beneficiary of a qualifying immigrant visa petition or labor certification that was properly filed on or before April 30, 2001, that person may still be eligible to adjust status in the United States if the other legal requirements are met.
For many families, §245(i) can be life-changing. It may make the difference between completing the Green Card process in the United States and having to leave the country for immigrant visa processing abroad.
INA §245(i) at a Glance
Qualifying immigrant visa petition or labor certification filed on or before April 30, 2001
The petition or labor certification must have been approvable when filed
Physical presence in the United States on December 21, 2000 may be required
The petition or labor certification must have been approvable when filed
A $1,000 penalty fee generally applies
The applicant must still be otherwise eligible for Adjustment of Status
If eligible, the applicant may apply for a Green Card without leaving the United States
Who May Be Eligible Under §245(i)?
Qualifying Petition
You must be the beneficiary of a qualifying immigrant visa petition or labor certification that was properly filed on or before April 30, 2001. This may include, for example, certain family-based petitions, employment-based petitions, or labor certification filings.
Approvable When Filed
The qualifying petition or labor certification must have been approvable when filed. In general, this means it was properly filed, non-frivolous, and meritorious in fact at the time it was submitted.
Physical Presence on 12/21/2000
If the qualifying petition or labor certification was filed after January 14, 1998, physical presence in the United States on December 21, 2000 is generally required. This requirement does not apply in every case, which is why the filing date matters.
$1,000 Penalty Fee
Applicants adjusting status under INA §245(i) generally must pay a $1,000 penalty fee in addition to the regular Adjustment of Status filing fees.
Otherwise Eligible to Adjust
INA §245(i) does not waive every requirement. The applicant must still have an immigrant visa available and must still be admissible to the United States, or otherwise qualify for any needed waiver.
Certain Family Members May Also Benefit
In some cases, spouses and unmarried children may also benefit as derivative beneficiaries or through the principal beneficiary’s grandfathered status.
Remain in the United States
A major benefit of INA §245(i) is that, if you qualify, you may be able to complete your Green Card process from inside the United States rather than depart for consular processing.
How §245(i) Adjustment of Status Works
Step 1 — Confirm the Qualifying Filing
The first step is to identify the old immigrant visa petition or labor certification and determine whether it was properly filed on or before April 30, 2001. It is also important to determine whether the filing was approvable when filed and whether the applicant is grandfathered under the law.
Step 2 — Review Physical Presence and Eligibility
Next, the case must be reviewed to determine whether the physical presence requirement applies and, if so, whether it can be proven. The applicant’s full immigration history should also be evaluated to determine whether any other issues may affect eligibility.
Step 3 — Prepare the Adjustment of Status Application
If eligible, the applicant may file Form I-485 and the other required forms and supporting documents. In most cases, the filing will also include the $1,000 INA §245(i) penalty fee.
Step 4 — USCIS Review, Biometrics, and Interview
Step 5 — Green Card Approval
If USCIS approves the case, the applicant becomes a lawful permanent resident and receives a Green Card. In many cases, this allows the person to obtain permanent residence without having to leave the United States to process through a U.S. consulate abroad.
You May Have Options. Let’s Evaluate Your Case.
INA §245(i) can provide a path to lawful permanent residence for individuals who might otherwise believe they have no way to obtain a Green Card from inside the United States. If you or a family member may be protected by an old petition or labor certification, our office can review the history of the filing, assess grandfathering issues, and help determine the best path forward.
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