Green Card for Illegal Immigrants Residing in the United States.
Adjustment of Status (Green Card) Under Section 245(i) of the Immigration & Nationality Act:
Section 245 of the Immigration and Nationality Act governs eligiblity requirement for Adjustment of status (Green Card) in the U.S. It allows an alien to apply for adjustment of status to that of a Lawful Permanent Resident while in the United States if certain conditions are met. Such Alien must;
- Be physically present in the United States.
- Have been inspected and admitted or paroled into the U.S.
- Be eligible for an immigrant visa.
- Have not violated the terms of his or her admission into the U.S.
- Have not engaged in Unlawful employment.
- Have not violated the terms and conditions of his or her Immigration Status.
- Be admissible for permanent residence, and not subject to the grounds of inadmissibility.
- Have maintained lawful non immigrant status with some exceptions.
Section 245(i) of the Immigration and Nationality Act allows an otherwise inadmissible Alien who has an available Immigrant visa number to apply for Adjustment of Status (green Card) upon payment of the penalty fees notwithstanding the fact that he or she entered without inspection (illegal entry), overstayed, or worked without authorization 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 Permanent labor certification (Form ETA 750) that was properly filed and accepted by the U.S department of Labor.
The qualifying application must have been non frivolous and physically received on or before April 30, 2001, or if mailed, was postmarked on or before April 30, 2001, and accepted for filing. Where such application was approved , withdrawn, denied, or revoked ,it will preserve the Alien beneficiary’s grandfathered Status.
An asylum Application, 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.
A grandfathered Alien is not limited to seeking Adjustment of Status solely on the basis of the qualifying Immigrant visa Petition or Permanent labor certification that initially grandfathered the Alien. The grandfathered Alien may seek adjustment of 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:
- is physically present in the United States;
- is the beneficiary of a visa petition or Permanent labor certification properly filed on or before April 30, 2001, and determined to be approvable at the time of filing;
- is eligible for an immigrant classification and has an immigrant visa number available.;
- is not inadmissible other than illegal entry,overstay ,unauthorised employment & non maintainence of immigration status.
- Properly files Form I-485, Application to Register Permanent Residence;
- Properly files Supplement A to Form I-485;
- Pays the penalty fees required.
Derivative Spouse or Child of a Grandfathered Alien.
Where a spouse or Child Relationship Existed at the Time of Filing the Grandfathering Immigrant Visa Petition Or Permanent Labor certification Submitted on or before April 30th 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 adjustment of 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 to Permanent Resident Status.
Where 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 seek adjustment of 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.
Where a spouse or child relationship is established after the filing of a grandfathering Petition or Application but ceases to exist at the time the principal Alien seeks adjustment of 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 nor independently because the qualifying marriage relationship was terminated prior to the Principal grandfathered alien adjustment of status application.
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.