245(i) Protection

  1. 245i protection for green card applicants who entered the United States without visa or inspection

In general, section 245(i) of the Immigration Nationality Act allows an otherwise admissible alien who has an immediately available immigrant visa to apply for a green card upon payment of a $1,000 penalty payment, even though the alien entered the United States without inspection in violation of section 245(a) or is barred by Section 245(c) of the Immigration & Nationality Act.  To be eligible under Section 245(i) of the Act, an alien must be the beneficiary of a qualifying immigrant visa petition (Form I-130 or Form I-140 or an approved labor certificate) that was filed on or before April 30, 2001 and meets applicable statutory and regulatory requirements.

United States Citizenship and Immigration Services (USCIS) has issued several policy memoranda explaining the implementation of section 245(i) of the Act, including "Accepting Applications for Adjustment of Status Under Section 245(i) of the Immigration & Nationality Act.

USCIS offices are directed by headquarter to comply with the following guidance in the review of applications for green card that are filed under Section 245(i) of the Act.  USCIS field offices will apply Section 245(i) of the Act as follows:

  1. After an alien meets the legal requirements for grandfathering under 8 CFR 245.10, the alien continues to be grandfathered until the alien adjusts status.
  2. An alien protected under Section 245(i) is not limited to seeking adjustment of status solely on the basis of the qualifying immigrant visa petition or application for labor certification that initially grandfathered the green card applicant.  the protected alien may also seek to adjust status on any other proper basis for which the green card applicant is eligible.
  3. Until a protected alien adjust status, there is no limit to the number of applications the grandfathered alien may file for adjustment of status under section 245(i) provided that the alien meets all of the requirements under 8 C.F.R. 245.10, including payment of the $1,000 penalty for every application filed.

For example, an alien beneficiary of a Form I-130 (Immigrant visa petition for Alien relative) that was filed on or before April 30, 2001 is considered to be protected and may apply to adjust status based on the I-130 petition.  If the grandfathered alien is not yet eligible for adjustment of status based on the I-130 petition and later becomes the beneficiary of an approved Form I-140 (Immigrant Petition for Alien Worker), the green card applicant would be eligible to apply for green card based on the I-140 petition.

Similarly, the protected alien would also be eligible for adjustment of status under Section 245(i) if the alien later wins a diversity visa.  If the alien has been denied adjustment of status, has withdrawn or abandoned the application for adjustment of status, or has otherwise not applied for a green card under section 245(i), the alien remains grandfathered.  The alien may apply for adjustment of status again if the alien meets the requirements of 8 CFR 245.10.

  1. General Requirements for Grandfathering under Section 245(i)

To be considered protected under Section 245(i) when applying for a green card, the green card applicant must satisfy the following requirements pursuant to 8 C.F.R. 245.10:

  1. The alien was the beneficiary of a qualifying immigrant petition or application for labor certification filed on or before April 30, 2001.
  2. The qualifying immigrant visa petition or the qualifying application for labor certification was "properly filed" and "approvable when filed"
  3. The principal alien was physically present in the United States on December 21, 2000, if the alien's qualifying immigrant visa petition or application for labor certification was filed before April 30, 2001.

"Approvable when filed" for a qualifying application for labor certification means that, as of the date of filing of the application for labor certification, the application was properly filed, meritorious in fact, and non-frivolous ("frivolous" means obviously without substance or merits).  Absent evidence of fraud, when a qualifying application for labor certification (Form ETA-750) is properly filed and accepted by the United States Department of Labor in accordance with 20 C.F.R. 656.21, USCIS will consider the requirements of 8 C.F.R. 245.10 related to "properly filed" and "approvable when filed" to have been met for grandfathering purposes under section 245(i).

Also, as already provided under 8 C.F.R. 245.10(i), the denial, withdrawal, or revocation of a qualifying application for labor certification, and that was properly filed on or before April 30, 2001 and was approvable when filed, will not preclude its protected alien (including the alien's spouse and children) from seeking adjustment of status and apply for green cards under section 245(i) of the Immigration & Nationality Act on any proper basis, if so qualified.

  1. 245(i) Requirements for the Derivative Spouse or Child of a Grandfathered Alien

Section 245(i) defines the term "beneficiary" to include a spouse or child "eligible to receive a visa under section 203(d) of the Act."  Depending on the circumstances, a spouse or child of a protected alien may also be a protected alien under 245(i) of the act may be eligible to adjust status as a dependent of the principal alien under section 245(i) of the Immigration & Nationality Act.

  1. Spouse or child relationship existed at time of filing of the 245(i) qualifying immigrant visa petition or application for labor certification submitted on or before April 30, 2001.

If an alien demonstrates that a spouse or child relationship existed at the time a qualifying petition or application was properly filed on or before April 30, 2001, a principal alien's spouse or child is a protected alien under 245(i) regardless of any subsequent changes in the relationship with the principal alien.  This means that even in the event of a divorce, the qualifying 245(i) petition will still lead to an approved green card application.  This also means that even if a child becomes 21 years or older, he or she can still avail to the protection of 245(i).  Such spouse or child who is grandfathered may seek to adjust status under Section 245(i) on any proper basis, if so qualified.

For example:

An application for labor certification is filed on behalf of principal alien "X" in 2000.  At that time, principal alien "X" is married to spouse "Y" and they have child "Z" in 2000.  Principal alien "X" and spouse "Y" divorce in 2003.  Today, spouse "Y" and child "Z" win the diversity lottery for the green card.  May spouse "Y" and child "Z" apply for adjustment of status under Section 245(i) regardless of their relationship to and the status of principal alien "X" ?

If all other 245(i) green card requirements are satisfied, spouse "Y" and child "Z" are protected under 245(i) green card applicants.  Principal alien "X" is protected under 245(i) because the application for labor certification was filed on X's behalf on or before April 30, 2001.  Spouse Y and Z are also protected under 245(i) because a qualifying relationship existed at the time the application for labor certification was filed.  Therefore, spouse Y and Z may apply for green card under section 245(i) based on a winning lottery application or any other proper basis.

  1. Spouse or child relationship established after April 30, 2001 and in existence on the date the principal alien adjusts status

If a spouse or child relationship is established after the filing of a grandfathering petition or application and is in existence at the time the principal alien is approved of a green card, the spouse or child is not a protected alien under Section 245(i) and may not independently apply for the green card under section 245(i).  Rather, the spouse or child may only benefit from section 245(i) as a dependent of the principal alien.  Accordingly, the qualifying relationship must continue to exist at the time the principal alien is approved of the green card in order for the spouse or child to obtain the derivative benefit.

For example:

An application for labor certification is filed on behalf of principal alien A in 2000.  At that time, A is unmarried.  A marries spouse B in 2002.  A and B have child C.  An I-140 is filed on behalf of principal alien A and is eventually approved in 2004.  A applies for a green card based on the approved I-140.  May spouse B and child C apply for the green card under section 245i along with principal alien A?

If all other 245(i) requirements are met, spouse B and child C may seek to adjust status only as dependents of principal alien A.  A is protected under section 245(i).  Because B marries principal alien A after the April 30, 2001 sunset date, spouse B and child C are not protected under 245(i) independently, and they must apply for the green card as derivatives of principal A's immigrant petition.

  1. Spouse or child relationship established after April 30, 2001 but not in existence on the date the principal alien receives the green card

If a spouse or child relationship is established after the filing of a 245(i) protected petition or application but is not in existence at the time the principal alien adjusts status, the spouse or child is not grandfathered and may not file for green card under section 245(i) as a dependent of the principal alien pursuant to section 203(d) of the Act.

  1. Spouse or child relationship established after the principal alien adjusts status and receives the green card

An alien who becomes the child or spouse of a 245(i) protected alien after the grandfathered alien acquires lawful permanent resident (LPR) status and receives the green card cannot adjust status under section 245(i) of the Act unless the alien has an independent basis for grandfathering.  Moreover, because the spouse and child relationships were established after the principal alien has been approved of the green card, after-acquired spouse and children are not eligible as accompanying or following-to-join (FTJ) spouse and child under section 203(d) of the Act.

  1. Multiple Filings for Green Card (Adjustment of Status) under Section 245 of the Act

Section 245 of the Act does not designate when or how often an alien may file an application for adjustment of status.  As such, there is no restriction on the number of times an alien may properly seek to adjust status, except as noted in (2) below.

  1. Timing of the filing of an application for green card to adjust status

A protected alien is not required to submit Form I-485 by a particular date.  The mere filing of a qualifying immigrant visa petition or application for labor certification, however, does not confer status upon an alien nor place an alien in a period of authorized stay by the Secretary of homeland Security for purposes of section 212(a)(9) - (see Unlawful Presence).  The filing of Form I-495 will prevent an alien from accruing unlawful presence under section 212(a)(9)(B) and (C) of the Immigration & Nationality Act.

  1. Eligibility to file an application for green card to adjust status

A protected alien is eligible to file an application for the green card under section 245(i) as long as the alien meets the requirements of 8 CFR 245.10 and has not adjusted status under section 245(i).  USCIS no longer considers an alien protected under 245(i) once the alien is granted the green card status under section 245(i) because the alien has acquired the only intended benefit of 245(i): green card LPR status

  1. Immigration Lawyer Assistance with 245i Green Card Petition

If you need to determine whether you are protected under Section 245i, please contact the immigration attorney direct line (949)228-3922 or email me at attorney@lawofficesofjackcsung.comto to receive a free consultation with an immigration attorney.  Office hours are Monday to Saturday from 9:00 AM to 9:00 PM, and email consultations are open 24 hours a day, 7 days a week.  Immigration law office located at 2975 Wilshire Blvd. Suite 352 in Los Angeles, California.