Green Card For Illegal Immigrants

Options for Gaining Legal Status for Individuals Without Papers in the U.S.

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

Section 245 of the Immigration and Nationality Act governs eligibility requirement for Adjustment of Status (Green Card) in the U.S. It allows an alien to apply for adjustment to Lawful Permanent Resident status within the U.S. if certain conditions are met. Such Alien must;

1. Be physically present in the United States.
2. They have received inspection and either admission or parole into the U.S.
3. Be eligible for an immigrant visa.
4. Have not violated the terms of his or her admission into the U.S.
5. Have not engaged in Unlawful employment.
6. Have not violated the terms and conditions of his or her Immigration Status.
7. Be admissible for permanent residence, and not subject to the grounds of inadmissibility.
8. Have maintained lawful non immigrant status with some exceptions.

Section 245(i) of the Immigration and Nationality Act allows inadmissible individuals with a visa number to apply for Adjustment of Status by paying penalty fees, even if they entered without inspection, overstayed, worked without authorization, or lack lawful status.

Section 245(i) refers to an alien adjusting status as a grandfathered alien. The term ‘grandfathered alien’ means an alien who benefits from an immigrant visa petition (such as Form I-130, Form I-140, Form I-360, or Form I-526) properly filed on or before April 30, 2001, and approvable when filed, or from an application for Permanent labor certification (Form ETA 750) properly filed and accepted by the U.S. Department of Labor.

The qualifying application must be non-frivolous and physically received by April 30, 2001, or, if mailed, postmarked by this date and accepted for filing. Whether approved, withdrawn, denied, or revoked, such an application preserves the alien beneficiary’s grandfathered status.

Eligibility for Green Card Adjustment Under Section 245(i)

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.

Grandfathered aliens with a petition or labor certification filed between January 14, 1998, and April 30, 2001, must show physical presence in the U.S. on December 21, 2000.

A grandfathered alien can adjust status through petitions beyond the original qualifying one. They may seek adjustment based on any eligible basis, such as an approved I-140, I-130, or winning the diversity visa.

Under Section 245(i), a person without lawful status may apply for adjustment under Section 245 if they:

1. is physically present in the United States;
2. The beneficiary has a visa petition or labor certification filed by April 30, 2001, deemed approvable at filing.
3. is eligible for an immigrant classification and has an immigrant visa number available.;
4. is not inadmissible other than illegal entry, overstay, unauthorised employment & non maintainence of immigration status.
5. Properly files Form I-485, Application to Register Permanent Residence;
6. Properly files Supplement A to Form I-485;
7. Pays the penalty fees required.

Derivative Spouse or Child of a Grandfathered Alien.

If a spouse or child relationship existed when the petition or labor certification was filed by April 30, 2001, the spouse or child remains grandfathered, even after divorce or aging out. A grandfathered spouse or child may seek adjustment under Section 245(i) on any eligible basis.

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.

See Information on Benefits and Responsibilities of Permanent Residence Status