INA 245(i) is a section in the law that allows one to qualify (see requirements below) for a green card even if the person entered without inspection or their status has expired. It does NOT protect a person who already has a prior deportation order. This article intends to discuss some of the general features of 245(i) and to answer some of the most common questions. Please note that this is a complicated topic. As always, you should consult with an attorney regarding your individual case.
245(i) requires all of the following: 1) A properly filed and approvable labor certification or an immigrant petition (see definition below) filed before April 30, 2001, 2) The person needs to be physically in the U.S. on December 21, 2000, and 3) The person needs to pay $1,000 when filing for green card. Coverage of 245(i) also includes a qualifying dependent. This includes a dependent spouse or child (below 21) at the time of filing before April 30, 2001.
Another way to be eligible for 245(i) you must be the beneficiary of a qualifying immigrant petition. For petitions filed through family, an I-130 form must be submitted. For petitions filed through employment, an I-140 form must be submitted.
The prior 245(i) had all the same requirements except that the petition or labor certification had to be filed before January 15, 1998 and there is no date that the person had to be physically present. However, the person must already be in the U.S. This prior version can still help if you qualify.
If you are grandfathered, it means you met the requirements under the law and you can still file for a green card even if you have to re-file your labor certification or petition because the original case was closed, withdrawn, or denied. Also, if you later get divorced or turn 21, you will still be grandfathered. As always, consult an attorney regarding your individual case.
A common question is, “What if I am grandfathered but my I-485 case was denied, can I file a new case?" Originally the INS/DHS had issued a memo in December 2003 saying that a person could only attempt to apply for green card under this law once, and if denied they could not apply again. However, in a memo issued in March, 2005 the INS/DHS corrected itself and allows more than one filing of a green card application under 245(i).
- I was 19 when my father filed a labor certification in April, 2001, and I was here on December 15, 2000. But my father’s employer for the labor certification is now closed? Can I file a labor certification or get a green card on my own if I am over 21 now?
Yes, you were grandfathered because you met the requirements above. Now you can file a labor certification and apply for green card on your own.
- What if I am grandfathered and got married after April 30, 2001. Is my spouse grandfathered?
Your spouse is not grandfathered, but can still get a green card if filing as a dependent through you. In other words, your spouse cannot get a green card if filing their own labor certification, but can use the benefits if you are filing for a green card after marriage. These questions were so difficult for the INS/DHS that they issued a memo in March, 2005 to clarify.
- What if I am grandfathered (meet the requirements above) but leave the country before I get my green card?
You may have problems returning because of the 3/10 year bar rule. When a person is out of status in the U.S. between 6 months and less than 1 year and leaves the U.S; they would have a bar of 3 years. This means you may not be able to re-enter for 3 years. If you are out of status in the U.S. for 1 year or more, you may not be able to re-enter for 10 years. There are waivers that can allow you to come back prior to this time, but they have very specific requirements.
- What if I apply for a green card and a travel document, will the bars stop me from coming back?
When you apply for a travel document, there is a disclaimer that says even with the document, you still may not be able to come back. The bars will apply unless waived. A travel document will not change that.
245(i) is a complicated issue with several requirements that can be confusing. Since each person’s case is unique, a qualified attorney should be consulted to properly handle your individual case.