Legal Counsel in Complex Immigration Matters

The U.S. immigration system and laws are complex and can change in response to shifts in administration. It is common for immigrants to feel overwhelmed by the various visa options and eligibility requirements. Those without legal status may be especially concerned about what could happen in the future if they do not find a path to permanent residence. The adjustment of status process under Section 245(i) allows certain individuals without legal status to remain in the United States and obtain a Green Card, even if they have certain prior immigration violations.

At Mi Sueño Americano, we understand how difficult it can be to achieve your American Dream. Our team helps you understand your options, regardless of how you arrived in the United States or what has happened in your past. We can help you choose the right path, whether applying for an adjustment of status under Section 245(i) or exploring other options. Take the first step by calling our Los Angeles office at (323) 672-4423 to schedule a consultation with an immigration attorney.

What is an Adjustment of Status Under Section 245(i) in Immigration Law?

An adjustment of status under Section 245(i) refers to the provisions established in Section 245(i) of the Immigration and Nationality Act (INA), which was amended by the Legal Immigration Family Equity (LIFE) Act. This section outlines the process for individuals living in the United States to obtain lawful permanent resident status, even if they would not normally meet the requirements for an adjustment of status through the standard Green Card process.

Section 245(i) specifically allows someone to obtain a Green Card regardless of how they arrived in the United States, whether they have maintained continuous legal status since entering the United States, and whether they are working without proper authorization.

The Section 245(i) provision is essential because it offers a legal pathway to lawful immigration status for those who may be undocumented. Without these provisions, the individual would have to leave the United States and go through the lengthy and often complicated process of obtaining a visa. An adjustment of status under Section 245(i) allows those who qualify to avoid separation from their family members and overcome certain grounds of inadmissibility.

What are the Eligibility Requirements for an Immigrant Visa Petition Through Section 245(i)?

The eligibility criteria for an adjustment of status under Section 245(i) are strict. You must be the beneficiary of a qualifying immigrant petition or labor certification application, and that petition or application must have been filed on or before April 30, 2001. If the petition was filed between January 15, 1998, and April 30, 2001, and you are the principal beneficiary, you must also have been physically present in the United States on December 21, 2000.

You must also be present in the United States when you file the Application to Register Permanent Residence (Form I-485), which will require Supplement A. Supplement A is the specific form for applying for an adjustment of status under Section 245(i) of the INA.

For your petition to be approved, you will generally need to be admissible to the United States (subject to exceptions under Section 245(i)) and have a visa immediately available. The U.S. Citizenship and Immigration Services office also states that a person must “merit the favorable exercise of discretion,” meaning there must be more positive reasons to approve your application than negative reasons to deny it.

The rules about who qualifies to obtain legal status through Section 245(i) are complex, and many people are concerned about what could happen if they are undocumented and attempt to apply under these provisions. The law firm of Mi Sueño Americano is here to ensure you understand whether you qualify for an adjustment of status under Section 245(i) and to assist you through the process step by step.

What is a Qualifying Petition or Labor Certification?

A qualifying visa petition or labor certification for an adjustment of status under Section 245(i) must have been properly filed and approvable before April 30, 2001. Properly filed means it was accurate and complete and the corresponding fees were paid at the time of filing. An application is considered “approvable” when the facts and documentation demonstrate that all requirements for the petition or certification were met. Even minor issues, such as forgetting a signature, can result in disqualification of the filing.

Since an adjustment of status under Section 245(i) is based on a visa petition or labor certification application that was filed on or before April 30, 2001, those applying for adjustment of status may encounter some problems. For example, the petition or labor certification may have been withdrawn, denied, or revoked since then, or the petitioner may have passed away. If you have experienced one of these challenges, you still have some options.

If the petition or certification was denied, revoked, or withdrawn, you may be eligible for coverage as long as the petition or certification met all requirements to be approved when it was filed, and the change in circumstances was beyond your control. Other situations that may allow you to be covered are:

• The family member who filed the petition passed away
• You are now divorced from the person who filed the petition
• The company that filed the labor certification application is no longer in operation

Understanding whether you can still use a filing to obtain lawful permanent resident status through an adjustment of status under Section 245(i) depends on the documentation and circumstances of the original petition. These cases can be highly nuanced, and you need the knowledge and experience of an immigration attorney to help you determine whether you meet the requirements for this pathway and what you can do to begin if you do.

What is the Process for Applying for a Green Card Under Section 245(i)?

Applying for legal status under Section 245(i) of the INA requires you to follow a specific process. Before beginning any paperwork, the first step should be to speak with an attorney about your individual situation and immigration goals. This ensures you know you meet the basic requirements for an adjustment of status in this manner and that you have experienced legal counsel advocating for you throughout the process.

The next step is to confirm your eligibility under Section 245(i). This includes locating the qualifying filing and determining that it was filed before the April 30, 2001, deadline and that it was approvable when filed. You will also need to show proof that you were in the United States on December 21, 2000, and verify visa availability. While Section 245(i) allows individuals to apply for a Green Card even if they entered the country illegally or worked without employment authorization, it does not waive all admissibility requirements. An attorney can help you identify whether there are potential issues with your admissibility, such as criminal history or prior removal, and whether a waiver is appropriate.

After you have addressed all these aspects, it is time to actually file your application. Include both the Application to Register Permanent Residence or Adjust Status and Supplement A, along with the filing fees. It may take some time for this to be processed, and an attorney can help you determine whether you need to consider interim benefits, such as applying for work authorization or advance parole.

Depending on your situation, there may be other steps, such as undergoing biometrics collection, attending an immigration interview, or responding to a Request for Evidence (RFE). Your attorney will assist you at each of these milestones so you know what to expect and can be prepared. If necessary, they can also attend some immigration appointments with you.

Once your application is processed, you will receive a notice indicating whether it was approved or denied. If approved, you will be granted lawful permanent resident status and receive a Green Card. If your application was denied, your attorney can explain any other options, such as immigration appeals or alternative visa options to address unlawful presence.

How Can a Section 245(i) Immigration Attorney Help?

Applying for a Green Card under Section 245(i) can be a valid form of adjustment of status, even if you have a history of unlawful presence. An experienced immigration attorney plays a key role in this process by ensuring you have someone on your side who understands the complexities of immigration law. An attorney will determine how your past and current circumstances affect your eligibility and whether a pending family case or nonimmigrant visa could impact your case.

An attorney’s role is to guide you through every step of the adjustment of status process under Section 245(i), and that is precisely what we do at Mi Sueño Americano. Whether you have questions about eligibility or documentation, or are unsure if this is the right option for you, our team can help. Our office is located in Los Angeles, CA, and you can call (323) 672-4423 to schedule a consultation.

Frequently Asked Questions

How Long Does It Take to Obtain a Green Card?

Green Card processing times vary widely depending on the type of petition and the level of case backlog at the U.S. Citizenship and Immigration Services office. It is common for processing times to take several months or even a year or more. An immigration attorney can speak with you about the expected timeline and what to expect.

Does Section 245(i) Adjustment of Status Allow Derivative Beneficiaries?

Whether a spouse or child can be a derivative beneficiary of an adjustment of status under Section 245(i) depends on the circumstances. In most cases, the family member must have been present in the United States when the qualifying petition or labor certification was filed and be otherwise admissible. Speaking with an attorney is the most accurate way to determine eligibility in these situations.

What Happens if I Missed the April 30, 2001, Deadline?

For an adjustment of status under Section 245(i), the qualifying petition must have been filed before this deadline. If it was filed even one day later, you will need to speak with an attorney about other potential options for obtaining legal status.