Providing Legal Guidance on Complex Immigration Issues

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

At Mi Sueño Americano, we know how difficult it can actually be to achieve your American Dream. Our team helps you understand your options, regardless of how you came to the United States or what has happened in your past. We can help you choose the right path forward, whether that’s applying for a Section 245(i) adjustment of status 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 a Section 245(i) Adjustment of Status Under Immigration Law?

A Section 245(i) adjustment of status refers to the provisions outlined 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 residence status, even if they do not typically meet the requirements for an adjustment of status through the standard Green Card process.

Section 245(i) specifically allows someone to get a Green Card regardless of how they came to the United States, whether they have maintained continuous lawful status since they entered the United States, and whether they are working without proper authorization.

The provision in Section 245(i) is essential because it offers a legal pathway to legal immigration status for those who may be undocumented. Without these provisions, the person would need to leave the United States and go through the long and often complicated process of getting a visa. A Section 245(i) adjustment of status allows those who qualify to avoid being separated from their family members and overcome certain inadmissibility bars.

What Are the Eligibility Requirements of an Immigrant Visa Petition Through Section 245(i)?

The eligibility criteria for a Section 245(i) adjustment of status are strict. You must be either the beneficiary of a qualified immigrant petition or application for labor certification, and that petition or application must have been filed either 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 to request an adjustment of status under Section 245(i) of the INA.

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

The rules for who qualifies for obtaining legal status through Section 245(i) are complex, and many people are worried about what might happen if they are undocumented and try to apply for these provisions. The law office of Mi Sueño Americano is here to ensure you understand whether you qualify for a Section 245(i) adjustment of status and help you through the process step by step.

What Is a Qualifying Petition or Labor Certification?

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

Because a Section 245(i) adjustment of status 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 could run into some problems. For example, the petition or labor certification may have been withdrawn, denied, or revoked since, or the petitioner may have died. 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 to be grandfathered as long as the petition or certification met all of the requirements to be approved when it was filed, and the change in circumstances was outside of your control. Other situations that may allow you to be grandfathered in include:

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

Understanding whether you can still use a filing to gain lawful permanent resident status through a Section 245(i) adjustment of status depends on the paperwork and the 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 path and what you can do to get started if so.

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

Applying for lawful status under Section 245(i) of the INA requires that you follow a specific process. Before you get started with any paperwork, the first step should be to talk to an attorney about your individual situation and your immigration goals. This ensures you know that 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 finding the qualifying filing and determining that it was filed before the April 30, 2001, deadline and that it was approvable when filed. You’ll also need to show proof that you were in the United States on December 21, 2000, and check visa availability. While Section 245(i) allows people to apply for a Green Card even if they came into the country unlawfully or worked without employment authorization, it doesn’t waive all admissibility requirements. An attorney can help you identify if there are any potential issues with your admissibility, such as a criminal history or prior removal, and whether a waiver is appropriate.

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

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

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

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

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

An attorney’s role is to guide you through every step of the Section 245(i) adjustment of status process, and that’s precisely what we do at Mi Sueño Americano. Whether you have questions about eligibility or documentation, or you’re not sure if this is the right option for you, our team can help. Our office is based in Los Angeles, CA, and you can call (323) 672-4423 to schedule a consultation.

Frequently Asked Questions

How Long Does It Take to Get a Green Card?

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

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

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

What If I Missed the April 30, 2001, Deadline?

For a Section 245(i) adjustment of status, the qualifying petition must have been filed by this deadline. If it was filed even one day after, you’ll need to talk with an attorney about other potential options to gain legal status.