Section 245(i) and adjustment of status

William D. Fong

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Immigration Attorney

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Section 245(i) of the Legal Immigration and Family Equity Act of 2000 (LIFE Act). The new Section 245(i) was signed into law on December 21, 2000 and allows certain applicants to become permanent residents without leaving the U. S. Applicants have until April 30, 2001 to file an immigrant visa petition, such as a relative petition or an employment based petition with the Citizenship and Immigration Services (CIS) or a labor certification application with the Department of Labor (DOL) to take advantage of this law. The Section 245(i) fee is $1,000 in addition to other CIS filing fees.

Note: The LIFE Act has a “physical presence" requirement: People who file a petition or labor certification after January 14, 1998 but before April 30, 2001 must prove that they were in the U.S. on December 21, 2000, the date the law was signed, to be eligible for Section 245(i).

Eligibility for the new Section 245(i). A person eligible for permanent residence based on a family relationship or job offer, and who wants to adjust status to permanent residence without leaving the U.S., needs to apply under the new Section 245(i). Most people who entered the U.S. without inspection (EWI), overstayed an admission or worked without authorization, are out of status and require Section 245(i) to adjust status to permanent residence inside the U.S.

Three and ten year bars to re-entry to the U.S. Without Section 245(i); applicants that are out of status must return to their home countries to complete the processing for an immigrant visa. However, if people have been out of status in the U.S. for more than 180 days, they would be barred from reentering the U.S. from 3 to 10 years. Under Section 245(i), an applicant can apply for adjustment of status in the U.S., and avoid these bars. It is important that people subject to the 3 and 10 year bars not leave theU.S. until they become permanent residents.

Changing permanent residence categories. It is important that people eligible for Section 245(i) file their petitions and applications before April 30, 2001 to be grandfathered for the section. This initial filing preserves the ability to adjust status in theU.S. Applicants can switch to another category if and when they become eligible for another category.

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