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Green Cards (Common)
National Interest Waivers
Extraordinary Ability
Professors & Researchers
Executives & Managers
PERM
Labor Certification
Investors (EB-5 visas)
Family (Spouse, etc.)Work Visas (Common)
H-1B Professionals
L-1 Transferees
O-1 Extraordinary Ability
TN Canadians & MexicansAnswers for--
Employers
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Nurses & Physical
Therapists
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How We Can Help
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Frequently Asked Questions about Adjustment of Status and Section 245(i)
Can I adjust my status if I entered illegally, worked without authorization or failed to maintain my nonimmigrant status?Generally, persons who entered the United States without being inspected by a U.S. immigration officer, who have ever been unlawfully employed in the United States or who failed to always maintain lawful status in the United States are barred from adjusting their status. (There are certain exceptions to the last two bars for "immediate relatives" of U.S. citizens and for certain employment-based applicants.) Some aliens, however, are eligible to adjust their status despite these problems under Section 245(i). Section 245(i)What is 245(i)?Section 245(i) of the Immigration and Nationality Act allows foreign nationals to adjust their status and become a permanent resident. Section 245(i) was first added to the law in 1994 to allow persons who qualify for green cards, but not for adjustment of status, to be able to adjust their status in the U.S. upon payment of a fine (currently $1,000). Congress phased Section 245(i) out of the law on January 14, 1998. Persons who had already qualified under the law as of that date were "grandfathered" into the benefits of Section 245(i) for the rest of their lives. The problem was that hundreds of thousands of otherwise qualified persons who missed the January 14, 1998 deadline could not adjust status in the U.S., and cannot return to their countries to obtain green cards without being subject to either a three- or a ten-year bar from returning to the United States. On December 21, 2000, Congress extended the qualifying date for Section 245(i) benefits to April 30, 2001. This law (called the LIFE Act) allowed people who had labor certifications or visa petitions filed on their behalf between 1998 and April 31, 2001. What are the requirements for 245(i)?To be eligible for 245(i), you must have been the beneficiary of a Form I-130 immigrant visa petition ("Petition for Alien Relative") or Form I-140 immigrant visa petition ("Immigrant Petition for Alien Worker") that was filed with the INS on or before April 30, 2001, or have been the beneficiary of an application for labor certification filed with the Department of Labor on or before April 30, 2001. If you are the beneficiary of a visa petition or labor certification application that was filed after January 14, 1998, but on or before April 30, 2001, you also had to be physically present in the United States on the date the LIFE Act was enacted— December 21, 2000. Illegal EntryI entered into the United States illegally. Now I am married to a U.S. citizen. May I adjust my status to permanent resident?Generally, you would not be eligible for adjustment of status. However, you may be able to adjust status if you qualify for 245(i). My daughter came to the United States with me illegally and she is now 10 years old. We satisfy all the requirements of 245(i) and we are now ready to adjust our status. Must she pay the $1000 penalty?No, children under the age of 17 do not have to pay the $1,000 penalty. I entered the United States illegally, but I am now married to a U.S. citizen. May I adjust my status?No, unless you are eligible to claim protection under Section 245(i). Visa OverstaysI entered on a B-2 visitor visa, but I have overstayed my visa for over one year. May I apply for adjustment of status through my employer?No, unless you are eligible for the protection of Section 245(i). I entered on a B-2 visitor visa, but I have overstayed my visa for over one year. However, I married a legal permanent resident. May I apply for adjustment of status?No, unless you are eligible for the protection of Section 245(i). I entered on a B-2 visitor visa, but I have overstayed my visa for over one year. However, I married a U.S. citizen. May I apply for adjustment of status?Yes. Immediate relatives of U.S. citizens may apply for adjustment of status despite a period of overstaying a visa. Working Without AuthorizationI would like to adjust my status, but I have worked without authorization from the USCIS. Am I eligible to adjust my status?You are not eligible to adjust your status if you have been employed in the United States without authorization from the USCIS, unless you are eligible under Section 245(i). This rule does not apply to you if you are the immediate relative of a U.S. citizen (parent, spouse, or unmarried child under 21 years old). It also does not apply to certain foreign medical graduates, international organization employees and their family members. I entered on a F-1 student visa and I want to apply for adjustment of status through my U.S. citizen sister. However, I have been working illegally. Do I have to mention my illegal employment on the immigration applications?Yes, you must answer each question honestly. |
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