Immigration: Who Benefits from Section 245i?
Section 245i allows certain persons who are not otherwise eligible to adjust their status to permanent resident without having to leave the US.
Who Can Adjust Status under Section 245I?Section 245i allows the following persons to adjust their status in the US:
* Persons who entered the US without being inspected by a CBP officer;
* Persons who worked in the US without authorization;
* Persons who overstayed or otherwise violated their nonimmigrant status; and
* Persons whose nonimmigrant status does not permit them to adjust their status in the US. (Examples: Persons who entered the US with transit visas or by using the Visa Waiver Program, etc.)
Persons who had visa petitions (I-130, I-140, I-360, I-526) or PERM applications filed on their behalf on or before April 30, 2001 may be eligible to adjust their status in the US under Section 245i.
Section 245i requires immigrants who apply for adjustment of status to pay a fine (currently $1,000) in addition to normal USCIS filing fees.
Approvable When FiledThe PERM application or visa petition must be *approvable when filed*, even if it is not ultimately approved, is withdrawn or the petitioner ceases to exist.
In order to be considered *approvable when filed*, the petition/application must be
1. Properly filed
2. Meritorious in fact
The original Section 245i expired on January 14, 1998. However, the LIFE Act extended 245i until April 30, 2001, but added the requirement that anyone applying for adjustment of status after January 14, 1998 must show that they were present in the US on December 21, 2000, the date that the LIFE Act was signed into law.
Section 245i also applies to spouses and children of the beneficiary of the PERM application or visa petition. Even if the spouse obtains a divorce, the spouse and his/her new family will be eligible to adjustment of status under Section 245i. The same rule applies to children who age-out and/or marry.
Who is Grandfathered under Section 245i?Once a person qualifies under Section 245i, he is *grandfathered* as eligible for benefits for the rest of is life. However, in the case of a divorce or an *age-out*, Section 245i is only applicable to new family members where the relationship existed before the principal beneficiary adjusted his or her status.
In order to be *grandfathered*, the relationship establishing the derivative spouse or child must have been in existence on or before April 30, 2001. Spouses and children who were born after that date or whose marriage took place after that date are classified as *after-acquired,* are not considered *grandfathered,* and thus cannot adjust under Section 245i. Nevertheless, if they are considered derivatives (*dependents*) of the principal beneficiary at the time he/she is adjusting under Section 245i, they may adjust their status in the US as a derivative with that parent or spouse. However they may not adjust their status under section 245i independent of that relationship.