Section 245(i) FAQ
Q: Who is covered?
*Please note that this is a complicated topic. As always, you should consult with an attorney regarding your individual case.
Q: What is 245(i)?
A: 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 expired. It does NOT protect a person who already had a prior deportation order.
Q: What does the current version of 245(i) require?
A: It 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)person needs to be physically in the U.S. on December 21, 2000, and 3)needs to pay $1,000 when filing for green card.
Q: What is an immigrant petition?
A: It includes an I-130 (filed through family) and an I-140 (filed through employment).
Q: What is the prior version of 245(i)?
A. It 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.
Q: Who is covered?
A: Anyone who meets the above 3 requirements AND a qualifying beneficiary.
Q: Who is a qualifying beneficiary?
A: It is a dependent spouse or child (below 21) at the time of filing before April 30, 2001.
Q: What does it mean to be grandfathered?
A: It means you met the requirements under the law and you can still file for green card even if you have to re-file your labor certification or petition later because the original case was closed, withdrawn, or denied.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.
Q: What if I am grandfathered but my I-485 case was denied, can I file a new case?
A: 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 has corrected itself and allows more than one filing of a green card application under 245(i).
Q: Example 1: 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 cert or get a green card on my own if I’m over 21 now?
A: 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.
Q: What if I am grandfathered and got married after April 30, 2001. Is my spouse grandfathered?
A: 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 just recently issued a memo in March, 2005 to clarify.
Q: What if I am grandfathered (meet the requirements above) but leave the country before I get my green card?
A: You may have problems returning because of the 3/10 year bar rule.
Q: What is the 3/10 year bar rule?
A: If a person is out of status in the U.S. between 6 months and less than 1 year, they would have a bar of 3 years. This means that if you have this bar and leave the country, 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. You need to consult with an attorney about your individual case.
Q: What if I apply for a green card and a travel document, will the bars stop me from coming back?
A: 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.
Rehan Alimohammad is an Attorney and CPA. Our office handles all tax law and immigration law issues. In the past year we have successfully trained over 200 people, including Attorneys, CPA’s, and Enrolled Agents, on how to successfully resolve cases with the IRS and State Tax Agencies. Please visit our website at www.attorneyrehan.com, or call our offices at (281) 340-2074 or (800) 814)-3920.
Disclaimer: This article is not meant as specific advice regarding a person’s individual case. An attorney should be consulted. This article does not create an Attorney-Client relationship. Any tax information or written tax advice contained herein (including any attachments) is not intended to be and cannot be used by any taxpayer for the purpose of avoiding tax penalties that may be imposed on the taxpayer. (The foregoing legend has been affixed pursuant to U.S. Treasury Regulations governing tax practice.)