Author: Jameel Manji, Founder, Manji Law, P.C.
Mr. Manji founded Manji Law in 2016 to follow his passion of helping people navigate the complicated immigration system. Mr. Manji graduated from Georgia State University College of Law and received Master of Taxation from the Georgia State’s J. Mack Robinson College of Business. Published on: April 18, 2023.
Manji Law is your complete immigration solution. If you are seeking assistance with the Atlanta Immigration Court, please give us a call. Manji Law can provide valuable insight, assistance, and a guiding hand to help you achieve your goals.
Immigration and Nationality Act Section 245(i)
Are you an immigrant who has overstayed the period allowed in your immigrant visa? Are you seeking lawful permanent resident status without leaving the United States? Though it comes at a cost, a Section 245(i) adjustment of status allows you to obtain a green card without leaving the country.
Immigration and Nationality Act (INA)
Under US immigration law, nonimmigrants in the United States are not expected to overstay in the country for more than the prescribed period as stated on their immigrant visa without proper authorization. Such persons must follow the lawful process to acquire permanent residence status. Notably, anyone who stays beyond the period allowed on their immigrant visa is at risk of deportation back to their home country.
The Immigration and Nationality Act (INA) regulates immigration in the United States. It contains several provisions which guide immigrants in the US on the lawful process for admission and continued stay in the country.
Section 245(i) of the INA is vital for nonimmigrants seeking to become lawful permanent residents.
What Is INA Section 245(i)?
The Immigration and Nationality Act was enacted in 1952, while Section 245(i) was included by Congress in 1994. Section 245(i) aims to provide undocumented immigrants with a legal means of changing their unlawful status to lawful status and obtaining lawful permanent residence.
As such, even certain undocumented immigrants who violated their status or overstayed can acquire a green card under Section 245(i) of the immigration law.
Section 245(i) is essential because it protects people whose relatives or employers had immigrant visa petitions filed on their behalf on or before April 30, 2001. Acceptable visa petitions include I-130 (Petition for Alien Relative) and I-140 (Immigrant Petition for Alien Worker).
This provision prevents nonimmigrants from being separated from their family and is especially helpful in obtaining a green card for parents of US citizens. It also permits them to work while going through the adjustment process. Adjustment of immigration status under Section 245(i) of INA allows immigrants to remain in the country during the family-based immigrant petition process without a waiver.
Who Is Eligible to Adjust Status Under Section 245(i)?
An immigrant will be eligible to obtain a green card through Section 245(i) if:
- The immigrant visa petition (Form I-130 or I-140) or labor certification application of which you are a beneficiary is filed on your behalf on or before April 30, 2001.
- The immigrant was physically present in the United States on December 21, 2000, if the immigrant is the primary beneficiary of a valid petition filed between January 15, 1998, and April 30, 2001.
- The immigrant currently benefits from a qualifying immigrant visa petition or labor certification. The immigrant could have been designated as the beneficiary on the original Form I-130 or I-140 through which they are grandfathered or through a subsequently filed immigrant petition.
- They correctly file Form I-485 to register permanent residency or adjust their status along with Form I-485 Supplement A.
- They pay the $1000 except in case of an exemption.
- They are physically present in the US when filing Form I-485 and Supplement A.
- They have a visa immediately available to them.
- They are permitted to enter the United States or have satisfied the requirement for a waiver of inadmissibility or any other form of relief.
- They qualify for the favorable exercise of discretion, i.e., their strengths outweigh the weakness when weighed against one another.
Other situations where an individual may be eligible to file for a green card under Section 245(i) include circumstances where:
- The original petitioner dies.
- The petitioning relative divorces the immigrant.
- The petitioner or employer withdraws the petition or labor certification.
- The petitioner or employer cannot maintain the petition or labor certification.
- In the case of Form I-140, the petitioner or employer is no longer in business.
In such cases, you may be exempt if the visa petition was approvable when first filed. The changed circumstances must pertain to factors beyond your control to keep your eligibility. This provision is also applicable if you withdraw your petition or the US Citizenship and Immigration Services (USCIS) denies the petition after approval.
The labor certification or the petition filed to safeguard a person’s eligibility for adjustment of status under Section 245(i) must meet the following requirements:
Care should be taken that the petition or the labor certification has been filed correctly. This entails ensuring that it was signed properly and accompanied by the applicable fees. Deficiencies in fulfilling such criteria lead to disqualification of the application or petition.
The application submitted should not be frivolous. It should be deemed approvable and meritorious based on facts. All other substantive requirements must be met as well.
The application must be filed in a timely manner, i.e., filed by April 30, 2001.
While Section 245(i) of the INA helps immigrants gain permanent lawful status and become permanent residents in the United States, it still requires immigrants to go through the steps stated in the Act to obtain a green card. Such immigrants must go through the process of submitting biometric information, security and background checks, and paying the required fees.
245(i) Processing Time
The time required for processing the adjustment form can vary depending on the green card type. Other factors that can lengthen the process include mistakes in the application and insufficient evidence for the case.
Additionally, the USCIS usually has a backlog of cases to process, which may lengthen your application processing time.
How Can an Immigration Attorney Help?
Do you need assistance to renew your green card or with filing your Section 245(i) adjustment of status application? We provide a mix of care and reliability in our services to help you navigate the complicated domain of immigration law.
Obtaining a green card through 245(i) adjustment of status process can be complex and lengthy. Immigration lawyers, such as the experienced lawyers at Manji Law, P.C., can explain the Green Card INA 245(i) adjustment process and assist you with preparing and filing your application.
Contact us to schedule an appointment today!