Eligibility for a Green Card in the United States

This article examines the effect of Section 245i of the Immigration and Nationality Act which allows eligible aliens who have a current immigrant visa number but who are unlawfully in the United States to remain and adjust their status through payment of a $1,000 penalty. The grandfathering can apply not only to petitions and labor certifications which were filed prior to January 15, 1998 but also to some petitions which were denied, withdrawn or based upon a spouse or parents petition filed prior to January 15, 1998.

This law however is in force only for those petitions or labor certifications filed on or before January 14, 1998. Those persons who have done so are considered to be “Grandfathered” in other words they remain eligible to adjust their status due to the fact that they filed their petition or labor certification prior to January 15, 1998. Please note that the INS requires documentation and support for a claim that a valid petition was filed.

Question: What happens if my sponsoring employer has gone out of business or my petitioning spouse has died?

Answer: Often the basis for the underlying petition or labor certification has changed due to circumstance beyond an applying person’s control. Even where the application has been denied due to these changed circumstance an applicant may still qualify as a “beneficiary” under section 245 i. The basic concept is that the petition or labor certification was approvable at the time of filing.

Question: What if I have withdrawn my petition or labor certification?

Answer: An applicant may still qualify and be “grandfathered” under 245i if the reason for the withdrawn application is a change of circumstances since the petition was filed. The INS will not grandfather a person whom it considers has filed a “frivolous” petition in the first place, or where a petition would have been rejected based on the merits of the application at the time of filing. Again at the time of filing the petition or labor certification must be considered approvable.

Question: What if my spouse or child have filed accompanying petitions based upon my petition or labor certification?

Answer: The INS may grandfather those individuals whose petitions were based on acceptance of a petition or labor certification filed on or before January 14, 1998. This may also include children who reaches the age of 21 following the filing of the petition or labor certification application. Although there is not a clear statement from the INS this may also apply to those persons who were unmarried minors at the time a petition or labor certification was filed and have subsequently become married.

As further information is received from the INS regarding 245i grandfathering issues, I will continue to monitor regulations and their effects and update you whenever any opinions or decisions are published.