From Illegal to Legal with 245(i)

Posted on 3月 28, 2006 by Warren Wen | Category: Immigration

How Does Section 245(i) Help Illegal Immigrants Adjust Status?

Ms. Li asked:

I arrived in the United States illegally in 1996.  In 1998, I married with my ex-husband, a greed card holder and filed I-130 petition with the USCIS. While I was waiting for the immigration quota, we got divorced in 2002.  If I marry a U.S. citizen or another green card holder, or my boss would like to apply for Labor Certification for me in the future, could I adjust my status legally in U.S. without going back to my home country?

Answer:

If Ms. Li gets married with a U.S. citizen or a green card holder in the future, or her boss agrees to apply for the Labor Certification on behalf of her, she could adjust her status legally in the United States, because she is grandfathered under section 245(i).  According to the USCIS Memo regarding section 245(i), in order to be considered grandfathered, an alien must satisfy the following requirements: (1) The  alien was the beneficiary of a qualifying immigrant petition or application for labor certification filed on or before April 30, 2001; (2) The qualifying immigrant visa petition or the qualifying application for labor certification was “properly filed” and “approvable when filed.”; (3) The principal alien was physically present in the United States on December 21, 2000, if the alien’s qualifying immigrant visa petition or application for labor certification was filed between January 15, 1998 and April 30, 2001.

Regarding Ms. Li’s situation, since she married with her ex-husband in 1998 and filed her application with USCIS before April 30, she is protected under section 245(i), 2001, as long as she can prove that she was present in the U.S. on December 21, 2000.  What is interesting about Ms. Li’s case is the fact that she divorced with her ex-husband in 2002.  Does that affect her eligibility for the protection of Section 245(i)?  The answer is surprisingly No.  According to the same USCIS Memo, once the marriage between the beneficiary and his spouse or children existed before April 30, 2001, no matter what happened to their relationship, it does not affect their eligibility for the protection under section 245(i).  Therefore, If Ms. Li gets married with a U.S. citizen or a green card holder in the future, or her boss agrees to apply for the Labor Certification on her behalf, she could adjust her status legally in the U.S.

This article is only for your reference. Please do not apply mechanically to any exact cases. You are welcome to consult our attorneys at Liu & Associates, P.C. For contact information, please click here.