By Attorneys Robert L. Reeves and Katherine L. Curtis
Adjustment to permanent resident status (obtaining a green card) under section 245(i) of the Immigration and Nationality Act (INA) is a welcome form of relief for individuals unlawfully in the United States (U.S.). Normally, aliens unlawfully present here must return to their native country in order to obtain a green card with a few exceptions. Their departure from the U.S., in most cases, will bar them from reentering this country for three or ten years unless they obtain a waiver from the U.S. Citizenship and Immigration Services (USCIS) to reenter the country based on hardship. And this hardship waiver is very difficult to obtain. However, a person eligible for relief under section 245(i) can adjust to permanent resident status in the United States despite their unlawful presence without returning to their home country or obtaining a waiver from USCIS.
It is very important to understand that section 245(i) of the INA by itself does not in any way form an independent basis for obtaining a green card. It only allows aliens who have an approved visa petition, which is now current and available, to file for a green card when they entered the US without inspection or they are not maintaining status.
In order to qualify for relief under section 245(i) a person must be the beneficiary of a visa petition or a labor certification application that was properly filed on or before April 30, 2001 or on or before January 14, 1998 and that was approvable when filed. If the petition or application was filed between January 14, 1998 and April 30, 2001, the individual must prove they were physically present in the U.S. on December 21, 2000. If the petition or application was filed on or before January 14, 1998, no physical presence in the U.S. is required.
A visa petition is properly filed when it was received by the Immigration and Naturalization Service (now USCIS) by the above referenced dates or postmarked by those dates, provided it was accepted for filing and not rejected for lack of signature, filing fees, etc. A labor certification is properly filed when the Secretary of Labor accepted it under the same circumstances stated above.
A petition or application needs to be properly filed and approvable when filed. Approvable when filed means that the petition or application must be properly filed, meritorious in fact, and non-frivolous. In other words, the petition or application cannot be fraudulent or completely without substance.
INA section 245(i) covers the principal beneficiary on whose behalf the petition was filed as well as their qualified spouse and children. Qualified beneficiaries under 245(i) are those individuals who were derivative relatives of the principal beneficiary at the time of the filing of the grandfathering petition or application. Derivative relatives are spouses and minor children who are eligible for the same status as their spouses or parents.
According to a USCIS Memo dated March 9, 2005, “If a spouse or child relationship is established after the filing of a grandfathering petition or application and is in existence at the time the principal alien adjusts status, the spouse or child is not a grandfathered alien and may not independently benefit from section 245 (i). Rather, the spouse or child may only benefit from section 245 (i) as a dependent of the principal alien. Accordingly, the qualifying relationship must continue to exist at the time the principal adjusts status in order for the spouse or child to obtain the derivative benefit.”
This means individuals who were either the spouse or children under 21 at the time the grandfathering petition or application was filed are independently covered by 245(i), and may adjust status on any other type of visa petition/application for which they are eligible. This eligibility remains despite any subsequent divorce or turning 21 years old.
However, if an alien marries the principal beneficiary after the 245(i) qualifying petition or application was filed, the spouse and children do not independently acquire any 245(i) rights. This means they may only adjust status (obtain a green card) derivatively through the principal beneficiary of an immigrant visa who independently acquired 245(i) status.
Section 245(i) may provide access to a green card for many individuals who would not qualify because they are out of status (illegal here) or entered without inspection or lost their entry documents. But the issue of who qualifies and who does not qualify for a green card under section 245(i) and the process of obtaining permanent residency is complex. As always, we advise consulting with a qualified immigration attorney regarding these issues.