The Immigration and Nationality Act (INA) 245(i)

Friday, April 28, 2017 | Last Updated: September 15, 2015
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With the announcement of the new unlawful presence waiver this past March, we have seen many new clients asking questions to see if they qualify. Some of these individuals actually qualify for adjustment of status (the process under which you can obtain your green card, lawful permanent residency) under a law called Immigration and Nationality Act (INA) 245(i).

Two of the main benefits of applying for your greencard under INA 245(i) instead of using the new unlawful presence waiver are:

  1. with INA 245(i) you can obtain your green card here in the U.S. without returning to your home country, with the unlawful presence waiver you can apply here but after approval you must return to your home country to process your immigrant visa;
  2. with INA 245(i), unlike with the unlawful presence waiver, you do not need to prove “extreme hardship” to a qualifying U.S. relative.

What is INA 245(i)?

INA 245(i) is a law allowing certain individuals who are present in the U.S. to obtain a greencard regardless of:

  • How you entered the United States (for example, entering via the border without inspection)
  • Working in the U.S. illegally (without authorization or permission)
  • Failing to continuously maintain lawful status since entry (being illegal in the U.S.)

INA 245(i) sounds amazing, how do I know if I qualify?

In order to qualify, you must:

  • Be the beneficiary of a qualified immigrant petition (Form I-130 or I-140) or application for labor certification (Form ETA-750) filed on or before April 30, 2001
  • Have been physically present in the U.S. on December 21, 2000
  • Be currently the beneficiary of a qualifying immigrant petition (either the original Form I-130 or I-140 through which you are grandfathered or through a subsequently filed immigrant petition)
  • Have a visa immediately available to you (immediate relatives do not have to wait for a visa number)
  • Be admissible to the U.S. (some criminal convictions will make you inadmissible, for example)

What if the petition or labor certification that was filed on my behalf before April 30, 2001 was withdrawn, denied, or revoked?

To meet the first requirement mentioned above the petition or labor certification must have been both properly filed and approvable when filed. At a minimum the filing must have been timely (filed by April 30, 2001) and meet all applicable substantive requirements (“approvable when filed”). Deficiencies such as a missing filing fee or missing signature will disqualify you.

Please contact our office to discuss the reason that your petition or labor certification was withdrawn, denied, or revoked. Whether you qualify for 245(i) will depend on whether the petition or labor certification was “approvable when filed.”

To remain eligible, the changed circumstances must relate to factors beyond your control rather than the merits at the time of filing. For example, you may still qualify for INA 245(i) if the petitioner dies, your spouse who filed the petition divorces you, your employer who filed the labor certification goes out of business, petitioner or the employer chooses to withdraw the petition or labor certification, or petitioner or employer is otherwise not able to maintain the petition or labor certification application.

What about my spouse or child?

Depending on the circumstances, a spouse or child may also be eligible to adjust status as a dependent. We can discuss this in depth during your consultation at one of our offices.

Can I work or travel while my application is pending?

Yes! Current processing times are about 90 days after filing for your employment authorization (work permit) and travel authorization.

If you think you may qualify for your greencard under INA 245(i) or if you would like to discuss other options contact us at one of our offices now. We look forward to serving you in your immigration needs.