Frequently Asked Questions: 245(i)
Q. What is the new 245(i) Amendment?
The new 245(i) Amendment allows some aliens who are out of status, entered the U.S. without inspection, or violated the terms of their non-immigrant visa to apply for adjustment of status after their immigration petitions are approved.
Q. Who is eligible to take advantage of 245(i)?
To be eligible to take advantage of 245(i), the alien must meet the following requirements:
- Physically present in the U.S. on December 21, 2000;
- An immigration petition or a labor certification application has been filed for the benefit of the alien on or before April 30, 2001; and
- The immigration petition or the labor certification application must be approvable at the time of filling.
Q. What kind of benefits does an alien get from 245(i)?
245(i) will allow the alien to apply for adjustment of status even if the alien entered the U.S. without inspection, was out of status, or violated the terms of his or her non-immigrant status. The alien still needs to meet other requirements for adjustment of status to obtain a green card.
Q. Who is not protected by 245(i)?
245(i) does not protect an alien from removal proceeding and does not grant other benefits such as employment authorization or advance parole.
Q. Does 245(i) protect aliens who have been ordered to be removed?
No. If a person has been ordered to be removed from the U.S., he or she cannot use 245(i) to lift this bar to adjustment of status. Also, if the alien is ordered to be removed in the future, the 245(i) does not protect the alien from removal.
Q. Does 245(i) exempt the J-1 holder’s home residency requirement?
No. The 245(i) does not grant a waiver to the J-1 holder’s two year residency requirement. An alien who is subject to the two-year home residency rule still needs to obtain a waiver or fulfill the requirement before applying for adjustment of status.
Q. What are the benefits of 245(i) to those who are currently in status?
For those who are in status and who were physically present in the U.S. on Dec. 21, 2000, if they are beneficiaries of immigration petitions or labor certification applications filed on or before April 30, 2001, they will be eligible to take advantage of 245(i) even if they fall out of status in the future.
Q. What are the three and ten year bars, and why should they be of concern?
Before the enactment of 245(i), aliens who are out of status needed to return to their home countries and complete the process for an immigrant visa at the U.S. consulate. However, if aliens found to be out of status in the U.S. for more than 180 days would be barred from reentering the U.S. for at least 3 years; aliens found to be out of status in the U.S. for more than 360 days would be barred from reentering the U.S. for at least 10 years. Under Section 245(i), an eligible alien can remain in the U.S. to obtain permanent residence through adjustment of status, and thus never trigger these entry bars. (Once permanent residence is obtained, these entry bars no longer apply.) Thus, it is particularly important that people subject to the bars not leave the U.S. at all until they become permanent residents since the 245(i) does not lift the three year/ten year bars.
Q. What is the penalty fee and when must it be paid?
The Section 245(i) penalty fee is $1,000, and is in addition to any other filing fees that the USCIS charges. This fee does not have to be paid when relatives or employers submit the visa petition or labor certification on or before April 30, 2001. Rather, it is usually due later, when the alien applies for adjustment of status to become a permanent resident. Thus, the $1,000 fee needs to be paid at the time of filing the Form I-485A, which is submitted along with the standard application for adjustment of status (Form I-485).
Q. I came into the U.S. legally with a B-1 visa and am out of status now. I just married a U.S. citizen. Moreover, I was present in the U.S. on December 21, 2000. May I use 245(i) to apply for a green card?
Yes, you may, but you do not need to. Even without 245(i), the fact that you are out of status does not prevent you from applying for adjustment of status. If you use 245(i), you have to pay a $1,000 penalty. If you do not 245(i), you do not need to pay the penalty. For the purposes of getting a green card, there is no difference whether you use 245(i) or not.