What is Adjustment of Status under INA § 245(i) and Do I Qualify?

When it comes to applying for legal permanent resident status (i.e., for a green card) in the United States, there are two paths: adjustment of status and consular processing. The most highly preferred pathway is adjustment of status because it allows you to submit all applications from within the United States. For those only eligible for consular processing, you will be required to complete the green card process from your home country abroad.

For obvious reasons, most people would rather have the option to stay in the U.S. while their case is decided. However, if you've entered the U.S. by any means other than at a valid port of entry (e.g., an airport or border checkpoint), overstayed your visa, worked without authorization, and are not the immediate relative of a U.S. citizen, adjustment of status is not available to you. That is, unless you qualify for adjustment under Section 245(i) of the Immigration and Nationality Act ("INA").

In 1994, the U.S. Congress enacted Section 245(i) of the INA in order to permit certain individuals who were otherwise ineligible for adjustment of status in the United States to pay a penalty fee for the convenience of adjusting without leaving the U.S. Although the law was extended several times, the final end-date was April 30, 2001. However, there are still individuals today that can qualify, so long as there was a petition filed on their behalf on or before that date.

Section 245(i) adjustment eligibility is dependent upon the existence of an old petition that was filed on or before April 30, 2001 for which you were the principal or derivative beneficiary (i.e., spouses and children under 21 y.o. of the principal beneficiary at the time the petition was filed, or those relationships that came into being before April 30, 2001 while a petition was still active). Furthermore, the original old petition must have been approvable when filed. Fortunately, even if you've aged out or divorced your spouse after this old petition was filed, you may still be eligible so long as the original petition could have been approved at the time it was filed.

It's important to note that 245(i) eligibility requires that you have a visa petition for which a visa number is currently available - this could be either the original old petition that is now current (after waiting over 20 years) or a new petition such as from an immediate relative. For anyone other than immediate relatives of U.S. citizens (spouse, parent, child under 21 y.o) you must wait until a visa becomes available. Depending on your visa category and country of birth, you could wait anywhere from a few months to several decades.

If you are no longer eligible under the original old petition, because maybe you aged out or got divorced, that petition is still sufficient evidence that you are eligible under 245(i). You would still need a new immigrant petition or labor certification, but you could submit that old petition as evidence that you are able to utilize adjustment of status instead of having to go through consular processing. Ultimately, Section 245(i) is an incredible resource if it's available to you as it can eliminate many of the headaches that come with consular processing.

ELIGIBILITY REQUIREMENTS FOR ADJUSTMENT OF STATUS UNDER INA § 245(i)

In order to qualify for the benefits under INA §245(i) you must meet the following criteria:

You are the beneficiary of a qualified immigration petition (Form I-130 or I-140) or application for labor certification (Form ETA-750) filed on or before April 30, 2001;
You were physically present in the United States on Dec. 21, 2000, if you are the principal beneficiary and the petition was filed between Jan 15, 1998 and April 30, 2001;
You are currently the beneficiary of a qualifying immigrant petition (either the original Form I-130 or I-140 through which you are grandfathered or through a subsequently filed immigrant petition) or an application for labor certification;
You properly file Form I-485, Application to Register Permanent Residence or Adjust Status, and Form I-485 Supplement A;
You pay the $1,000 fee (unless exempt);
You are physically present in the United States at the time you file Form I-485 and Supplement A;
You have a visa immediately available to you;
You are admissible to the United States or are eligible or a waiver of inadmissibility or other form of relief; and
You warrant a favorable exercise of discretion (this means the positive factors in your case outweigh the negative factors).

If you believe you qualify for adjustment of status under Section 245(i) of the INA, and would like to set up a consultation, please schedule one today using the button at the top of our website or by giving us a call. Our experienced immigration attorneys are here to provide the advice you need.

Disclaimer: This blog post and similar posts are not to be considered as providing legal advice. The discussion here is meant for educational and informational purposes only and shall not create an attorney-client relationship with the readers of this content.