Green Card for  Illegal Immigrants

Adjustment of Status (Green Card) Under Section 245(i) of the Immigration and Nationality Act:

Section 245 of the Immigration and Nationality Act allows an alien to apply for adjustment of status to that of a Lawful permanent resident (LPR) while in the United States if certain conditions are met. The alien must have been inspected and admitted or paroled, be eligible for an immigrant visa and admissible for permanent residence, and, with some exceptions, have maintained lawful nonimmigrant status. The alien must also not have engaged in unauthorized employment.

Section 245(i) of the Immigration and Nationality Act allows an alien to apply to adjust status under section 245 notwithstanding the fact that he or she entered without inspection, overstayed, or worked without authorization.

In general, section 245(i) of the Immigration and Nationality Act allows an otherwise inadmissible Alien who has an immediately available Immigrant visa number to apply for Adjustment of Status (green Card) upon payment of the required fees even though the Alien entered the United States without inspection (illegal entry) and is not maintaining a Lawful Immigration Status. An alien adjusting under section 245(i) is referred to as a grandfathered Alien.

The term “grandfathered Alien” means an Alien who is the beneficiary of an Immigrant Visa Petition (ie Form I-130, Form I-140, Form I-360, or Form I-526) which was properly filed on or before April 30, 2001, and which was approvable when filed; Or An Application for labor certification (Form ETA 750) that was properly filed and accepted pursuant to the regulations of the Secretary of Labor .

The term “properly filed” means: that the Application was physically received on or before April 30, 2001, or if mailed, was postmarked on or before April 30, 2001, and accepted for filing.

The term “approvable when filed” means that, as of the date of the filing of the qualifying Immigrant visa Petition or qualifying Application for labor certification, the qualifying Petition or Application was properly filed, meritorious in fact, and non�]frivolous ("frivolous" being defined as patently without substance or legal basis). This determination will be made based on the circumstances that existed at the time the qualifying Petition or Application was filed.

An Immigrant visa Petition that was properly filed on or before April 30, 2001, and was approvable when filed, but was later withdrawn, denied, or revoked due to circumstances that have arisen after the time of filing will preserve the Alien beneficiary's grandfathered Status if the Alien is otherwise eligible to file an Application for Adjustment of Status (green card) under section 245(i) of the Immigration and Nationality Act.

An asylum Application, diversity visa lottery Application, or diversity visa lottery�]winning letter does not serve to grandfather an Alien for purposes of section 245(i) of the Immigration and Nationality Act. Aliens who are grandfathered on the basis of a visa Petition or Labor certification filed after January 14, 1998, and on or before April 30, 2001, must demonstrate physical presence in the United States on December 21, 2000. Only principal Aliens must meet this requirement.

If the Alien is not in an authorized period of stay, the fact that he or she is a grandfathered Alien does not prevent the Alien from accruing unlawful presence.

In summary:
An Alien must satisfy the following requirements

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 qualifyingI mmigrant visa Petition or Application for labor certification was filed between January 15, 1998 and April 30,2001.

A grandfathered Alien 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 Alien. The grandfathered Alien may also seek to Adjust Status on any other proper basis for which the Alien is eligible E.g. a later approved I-140 ,I-130 or wins the diversity visa.

Under Section 245(i), an otherwise illegal Alien may apply for adjustment of status under section 245 of the Act if the alien:

1. is physically present in the United States;
2. is the beneficiary or a visa petition or application for labor certification properly filed on or before April 30, 2001, and determined to be approvable at time of filing;
3. is eligible for an immigrant classification under section 203 of the Immigration and Nationality Act, and has an immigrant visa number immediately available at the time of filing an application for adjustment of status;
4. is not inadmissible to the United States under section 212 of the Immigration and Nationality Act, or, if appropriate, all grounds of inadmissibility have been waived;
5. Properly files Form I-485, Application to Register Permanent Residence or Adjust Status, with the required fees.
6. Properly files Supplement A to Form I-485;
7. pays an additional sum of $1000 unless payment of the sum is not required.

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Depending on the circumstances, a spouse or child of a grand fathered Alien may also be a grand fathered Alien or may be eligible to Adjust Status as a dependent of the principal Alien under section 245(i) of the Immigration and Nationality Act.

Where Spouse or Child Relationship Existed at the Time of Filing the Grandfathering Immigrant Visa Petition Or Application for Labor certification Submitted on or before April 30th 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 grandfathered Alien regardless of any subsequent changes in the relationship with the principal Alien. This means that a spouse or child remains grandfathered even after losing the Status of spouse or child, such as by divorce or the child becoming 21 years of age. Such spouse or child who is grandfathered may seek to Adjust Status under Section 245(i) on any other proper basis, if so qualified.

Spouse or Child Relationship Established After April 30th, 2001 and in Existence on the date the Principal Alien Adjust 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 adjusts Status, the spouse or child is not a grandfathered Alien and may not independently benefit from 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 adjusts Status in order for the spouse or child to obtain the derivative benefit.

Spouse or Child Relationship Established after April 30th, 2001 but not in Existence on the date the Principal Alien Adjust Status

If a spouse or child relationship is established after the filing of a grandfathering 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 Adjustment of Status under section 245(i) as a dependent of the principal Alien. This is because spouse married grandfathered principal Alien after the April 30, 2001 sunset date; spouse is not grandfathered and may not independently benefit from section 245(i) of the Act. In addition, spouse may not apply for Adjustment of Status under section 245(i) as a dependent of Principal Alien because Principal Alien and spouse divorced before Principal Alien adjusted Status.

Spouse or Child Relationship Established After the Principal Alien Adjust Status to that of a Lawful Permanent Resident

An Alien who becomes the child or spouse of a grandfathered Alien after the grandfathered Alien acquires Lawful Permanent Resident Status cannot Adjust Status under section 245(i) of the Act unless the Alien has an independent basis for grandfathering. This is because spouse and child relationships did not exist on the date of the filing of the Application. Moreover, because the spouse and child relationships were established after the principal Alien adjusted Status to a Lawful Permanent Resident, spouse and child are not eligible as "accompanying" or "following�]to�]join" spouse and child under section 203(d) of the Immigration and Nationality Act.

Form I-485: Application for Adjustment of status
Supplement A to Form I-485: Adjustment of Status under section 245(i)

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