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245(i) Adjustment

Usually an individual who entered the United States without inspection (or an individual who violated the conditions of his or her visa) is not eligible for adjustment of status (i.e., apply for a green card in the U.S. to become a permanent legal resident). However, Section 245(i) of the INA allowed certain persons to pay a $1000 penalty to be able to become lawful  permanent residents without having to return to their home country, even if they entered without inspection or if they violated their legal status. Unfortunately, Section 245(i) only applied to persons who entered the United States before May 5, 1988.

In December of 2000, the Legal Immigration Family Equity Act (LIFE Act) was signed into law. The LIFE Act’s main benefit is that it extends the benefits of Section 245(i). The LIFE Act includes individuals who are beneficiaries of a visa petition or labor certification application that was filed on or before April 30, 2001.

Although this special program expired on April 30, 2001, a “grandfathered beneficiary” of a 245(i) visa petition can submit a new visa petition and still take advantage of the benefits of section 245(i). In order for a beneficiary to be considered grandfathered to the original 245(i) application, the following must be true:

  1. Original 245(i) petition or labor certification application was filed no later than April 30, 2001;
  2. The applicant was physically present in the U.S. on December 21, 2000; and
  3. The petition or labor certification was approvable when filed.
  4. In this case, the definition of “approvable when filed” means that the petition was:
    1. Properly filed: meaning the application was complete and not returned;
    2. Meritorious in fact: meaning the application would have been approved if it had been processed the day it was submitted; and,
    3. Not frivolous: meaning the application was clearly valid.

If an individual meets the qualifications described above, that individual is considered a “grandfathered beneficiary.” A grandfathered beneficiary can seek adjustment of status through any way that he may be eligible for (i.e., by marriage to a U.S. Citizen, or by having a U.S. citizen son or daughter file a petition for that beneficiary).

The grandfathered beneficiary is not limited to adjust status under the original basis on which the original 245(i) application was submitted. Likewise, the beneficiary can submit the petition under a new petitioner; the original petitioner (of the original 245(i) application) does not have to be involved in the new petition.

For example, if the original 245(i) petition was based on marriage to a U.S. citizen spouse, the new (grandfathered petition) can be submitted by the beneficiary’s U.S. citizen son or daughter.

Additionally, the grandfathered beneficiary is not limited to the number of applications/petitions he or she can submit. Even if a subsequent petition is denied or abandoned, the beneficiary remains grandfathered until he or she successfully adjusts status.

Finally, the spouse of a grandfathered beneficiary is also considered grandfathered as long as the marriage took place before April 30, 2001. Even if the beneficiary and spouse subsequently divorce, as long as the relationship existed when the original application was filed, the spouse would benefit as a grandfathered beneficiary.

Similarly, a child of a grandfathered beneficiary is also grandfathered even if the child subsequently “ages out” (meaning the child is 18 or older), as long as the relationship between the child (who was less than 18) and parent existed at the time the original 245(i) application was submitted.

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