Section 245(i) of the Immigration and Nationality Act: Separating the Truth from Fiction
There is a lot of talk, rumor, gossip, and poor media
coverage regarding amnesty, so much so, that is necessary to set
the record straight.
The dictionary definition of amnesty is "an act of forgiveness
for past offenses, especially to a class of persons as a whole."
First myth: Section 245(i) of the Immigration and Nationality
Act as amended by the Legal Immigration Family Equity Act ("LIFE
Act") Amendments of 2000 is not amnesty for all illegal
immigrants; 245(i) it does not allow everyone who entered the
country illegally, or who overstayed their visas to get a "green
card," no matter how long they have been in the U.S.
Second myth: Section 245(i) does not forgive
all sins, such as using fraudulent documents. Third myth:
Section 245(i) is also not a "new" law. The deadline for filing
under the section originally passed in 1996. Then, on December
21, 2000, law was passed that extended that deadline until April
30, 2001. To date, that deadline still stands.
The rest of this article will go provide details about 245(i)
and how one may qualify to adjust status under this provision of
1. What is section 245(i)?
Answer: 245(i) of the Immigration and Nationality Act allows
some persons to become permanent residents without leaving the
U.S. through a process called "adjustment of status". Generally,
persons who either 1) entered the U.S. without being inspected
by a USCIS officer, 2) were unlawfully employed in the U.S., or
3) failed to always maintain lawful status in the U.S. are
barred from adjusting their status in the U.S. There is a
$1,000.00 fee in addition to the normal filing fees and an
additional form. Note: New filing fees are in effect since July
2. What must I do to qualify for 245(i)?
Answer: A person who had a properly
filed and approvable when filed labor certification or
visa petition filed on their behalf after January 14,
1998, but on or before April 30, 2001,qualifies for the
benefits of §245(i) but only if they were physically
present in the U.S. on the date of enactment of the new
law (December 21, 2000). If the properly filed and
approvable when filed labor certification or visa
petition was filed prior to January 15, 1998,you are
required to be physically present in the U.S. at the
time of filing under 245(i). However, pre-January 15
filings that are deficient because they were submitted
without fee, or because they were fraudulent or without
any basis in law or fact, should not be considered to
have grandfathered the alien. Please consult a reputable
attorney to see if your previously filed visa petition
or labor certification may qualify under 245(i)).
3. Does this mean that I must have been lawfully
in the U.S. on December 21, 2000?
Answer: No, merely that you were
present, legally or illegally, in the U.S. on that date.
Dependent spouses and children do not need to
demonstrate physical presence on December 21, 2000.
4. Do I have to adjust status in the same
category that I was petitioned for?
Answer: No, provided you qualify to
file under 245(i) as explained above.
5. I have a properly filed and approvable I-130
my sister filed for me before April 30, 2001. How about
my children? Once they turn 21 years of age, they won't
be entitled to any benefits based on this petition, will
Answer: Your children are considered to
be "derivative beneficiaries" of the I-130, if the child
relationship existed at the time your sister filed the
I-130. This entitles not only you, but your children as
well to the benefits of 245(i). Even if one of your
children turns 21 or marries, your children will still
be entitled to the benefits of §245(i) as they were
"derivative beneficiaries" of a visa petition filed
before April 30, 2001.
6. What happens if the employer goes bankrupt or
withdraws my labor certification or visa petition? What
is my labor certification was not approved? What happens
if the relative who petitioned for me dies? Am I still
eligible under 245(i)?
Answer: Yes, you are still eligible.
Immigration utilizes an "alien based" interpretation of
§245(i). If a labor certification or visa petition was
properly filed and approvable when filed, you are
entitled to the benefits of 245(i) even if the
application/petition was never approved, was withdrawn,
or the petitioner ceases to exist.
However, as stated before, filings that are deficient
because they were submitted without fee, or because they
were fraudulent or without any basis in law or fact, are
not considered to be "approvable when filed" and confer
no benefits under 245(i) .
7. If I qualify for benefits under 245(i), when
will my eligibility for being able to adjust status in
the U.S. expire?
Answer: There is no expiration. Once
you qualify for benefits under 245(i), your eligibility
never expires, and there is no restriction on the number
of times an alien may properly seek to adjust status.
However, you must have a visa number immediately
available to you - CONSULT THE VISA BULLETIN or consult
with a reputable attorney as to the right time to file
under 245(i). The trick is that those aliens must be
eligible to adjust. The law, 245(i), does not create a
separate class of aliens who can adjust their status;
rather, 245(i) only helps those who would be able to if
they had not entered illegally or overstayed their
visas. That means that the only people who can utilize
245(i) to adjust their status are the immediate
relatives of U.S. Citizens, relatives who have current
priority dates, or beneficiaries of an approved Labor
is a solo law practitioner who practices immigration law, adoptions, Fair Housing, landlord/tenant, and real estate. She is admitted in the Florida Bar and the U.S. Middle District Court of Florida. She is a member of American Immigration Lawyers Association, President of the Jacksonville Asian American Bar Association, and a member of the Jacksonville Asian American Alliance. She also teaches legal writing at Florida Coastal School of Law. She may be reached at 904-638-1338 or at mariadeg @ bellsouth.net.