Introduction to 245(i) 1/2

Posted on 4月 11, 2006 by Warren Wen | Category: Immigration

Introduction to Section 245(i) 1/2

Many immigrants, whether they are legal or illegal, seem to be eagerly waiting for the future amnesty when in fact a lot of them could adjust their status right now, if they are grandfathered by Section 245(i).  As many are aware of, Section 245(i) is a special amnesty for many illegal immigrants, because it can help them to adjust their status legally in the U.S.  With Section 245(i), the illegal immigrants can avoid the risk of being deported and not being able to re-enter into the U.S. for many years.

According to the U.S. immigration law, once an alien overstayed in the U.S. illegally for more than one year, he/she is barred from re-entering the U.S. within the next 10 years. If the alien wants to adjust his/her status legally without the Section 245(i), he/she needs to leave the U.S. and would not be able to back for at least 10 years. It is a too long and painful process of waiting for what is still uncertain to them. This is why most of illegal immigrants prefer to stay in the U.S. even if this means for them to live in the U.S. as illegal immigrants.

If the alien is grandfathered under the Section 245(i), however, he/she could adjust his/her status in the U.S. legally. Many have heard about this benefit, but what they are not sure of is whether they could be grandfathered under Section 245(i) or not. With my years of experience in immigration, I have found that there are a lot of people who are grandfathered under the Section 245(i) and can adjust their status right now, but they do not have clear understanding of the benefit provided by this section. Thus, many aliens tend to be still considering the future amnesty as their only hope. In this article, I will share some of the common cases to show how illegal immigrants could be grandfathered under Section 245(i), hence allowing them to adjust their status right now.

Case 1:

Ms. Li, came to the U.S. illegally in 1996. In 1998, she married her ex-husband, a green card holder and filed I-130 petition with the USCIS. While she was waiting for the immigration quota to be available, in 2002, she was divorced. Now, her boss would like to apply the application for the Labor Certification on behalf of her.

Case 2:

Mr. Wang, arrived in the U.S illegally in 1992. In 1999, he was employed by a Chinese restaurant as a cook and his boss applied for the Labor Certification for him at that time. After it was approved, he filed I-140 to the USCIS, but unfortunately, it was denied. In 2004, he got married to a green card holder and he wants to apply for immigration visa again.

Case 3:

Miss Zhang, 21 years old, entered the U.S. with her father illegally in 1998. Later, her father got re-married to a green card holder and filed the I-130 petition in 2000. In 2003, Miss Zhang found a job and now her employer would like to apply for Labor Certification on behalf of Mss Zhang. Then, can she be grandfathered under Section 245(i)?

According to the regulation under the Section 245(i) and the pertinent, all of the above clients may be able to adjust their status legally in the U.S.  In the first case, Ms. Li is grandfathered under the Section 245(i), because she has filed I-130 petition before April 30, 2001. Though she divorced her ex-husband, according to the section 245(i), as long as the marriage between the beneficiary and his spouse existed before April 30, 2001, it does not affect her eligibility for the protection under the Section 245(i). It does not matter what happened to their relationship later on.

In the second case, though Mr. Wang entered the U.S. illegally, he has filed a Labor Certification before April 30, 2001, and he was in the U.S. on December 21, 2000. So, if he wants to apply for green card after he got married to a green card holder, he could be grandfathered under the Section 245(i).

Miss Zhang in the last case is similar to the first case.  According to Section 245(i) mentioned earlier, a spouse or child remains grandfathered even after losing the status of spouse or child, such as by divorce or the child becoming 21 years of age. Such spouse or child who is grandfathered may seek to adjust status under Section 245(i) on any proper basis, if so qualified.  In this case, although Miss Zhang is 21 years old and cannot be considered a child any more, she can still be grandfathered under Section 245(i) for his father has filed I-130 petition before April 30, 2001.  Though she is no longer dependent child of her father, however, there is no influence on her eligibility to be grandfathered under Section 245(i)

Generally speaking, Section 245 (i) can benefit a lot of illegal immigrants.  And, those who are grandfathered under Section 245(i) may adjust their status right now and need not wait for the future amnesty.

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.