Obtaining a Green card Under 245 (i)

In order to become a lawful permanent resident of the United States, that is, to obtain a “green card,” an alien must meet certain conditions, which are enumerated in Section 245 of the Immigration and Nationality Act (“INA”). Among these conditions are that the alien have been inspected and admitted or paroled into the United States, and not have engaged in any unauthorized employment. Section 245(i) of the INA allows certain aliens to become lawful permanent residents notwithstanding the fact that some of these conditions have not been met.

From October 1, 1994 to January 14, 1998, any alien willing to pay the additional fee specified in section 245(i), who met the other requirements of section 245could adjust status under that section. In order to take advantage of section 245(i) after January 14, 1998, an alien must be the beneficiary of an immigrant visa petition or an application for labor certification, filed on or before January 14, 1998.

The Immigration and Naturalization Service (“INS”) has adopted what has come to be known as the “alien-based” reading of section 245(i). Under this reading, the alien beneficiary who has filed on or before January 14, 1998, may use 245(i) as the vehicle for adjustment, but the basis for the adjustment may be obtained through a different filing, including a petition submitted and approved after January 14, 1998, or a diversity visa application. Thus, the alien may be “grandfathered” in and able to adjust their status to that of lawful permanent resident.

In order for a pre-January 15, 1998 filing to grandfather the alien, the filing must have been approvable at the time of filing. In order to be approvable at the time of filing, the filing must meet all applicable substantive requirements for that filing.

There are many situations under which grandfathering may arise. Aliens may change their employers, remarry, or may become the beneficiaries of new petitions for any number of reasons. As long as the alien seeking to adjust status based on section 245(i) is recognized as the “beneficiary” of a qualifying pre-January 15, 1998 petition or labor certification application, the alien may adjust status to that of lawful permanent resident under section 245(i). In cases where the pre-January 15th filing has been withdrawn, denied or revoked, INS adjudicators attempting to determine whether the beneficary of the pre-January 15th filing should be grandfathered must look to that filing and determine whether it was approvable when filed.

To determine whether or not an alien qualifies for a green card under 245(i), consult an attorney.