Legal Entry Overstay
This is the most common marriage-based fact pattern: foreigner enters the United States legally on a non-immigrant visa such as a tourist or student, has an I-94, overstays and /or violates their status by working illegally, but later falls in love and marries a U.S. Citizen in good faith. Those people can be petitioned by their spouse and file for a green card in the United States.
But what if you entered illegally by crossing the border? Say you crossed through Canada, rode a van and was let in without inspection, or you managed to cross the US-Mexico border in California, Texas, or Arizona without inspection, and you married a U.S. Citizen, can you still get a green card based on marriage without leaving the United States?
This law called INA § 245(i) allows these people to apply for a green card. The law’s application comes in two important petition deadlines which will be explained below, January 14, 1998 and April 30, 2001. We assume that there are no other basis for inadmissibility other than illegal work and illegal entry. So if you are convicted of certain crimes or committed fraud in certain contexts, such as misrepresenting in a job application or I-9 form that you are a U.S. Citizen, inadmissibility may still apply.
Beneficiary of a Petition Filed Before January 14, 1998
If you had a labor certification or an I-130 visa petition filed on your behalf on or before January 14, 1998, even if you entered without inspection to the U.S. at any time, INA § 245(i) protects you in the sense that you can file for a green card in the United States through marriage to a U.S. Citizen. “I-130 visa petition filed on your behalf” includes those petitions in which you were a derivative beneficiary. Let’s say your US Citizen uncle filed an I-130 sibling petition for your mom or dad in 1997 and you were under 21, then you will be considered as having an “I-130 visa petition filed on your behalf.” Take note that the law only states that a petition or labor certification has to be filed, it does not even need to be approved.
The U.S. Citizen spouse files the I-130 Immigrant Petition and you simultaneously file the I-485 Adjustment of Status application, but unlike the typical marriage case, you also have to file this together with Supplement A to the I-485 with an extra $1000 fee. All basic documents that go along with a marriage case should be filed, but in addition to that, proof that you were a beneficiary of a labor certification or immigrant petition should also be included, such a copy of an I-130 receipt or approval notice with a January 14, 1998 receipt date or earlier, or a labor certification receipt proof on those dates.
Beneficiary of a Labor Certification or Visa Petition Filed After January 14, 1998, but on or before April 30, 2001
Beneficiaries of a labor certification or visa petition filed on their behalf after January 14, 1998 but on or before April 30, 2001 can also get a green card through INA § 245(i) through marriage to a U.S. Citizen but only if they were physically present in the U.S. on December 21, 2000. So in addition to the forms and fees of a typical marriage-based green card case, proof that you were the beneficiary of a petition or labor certification filed on or before April 30, 2001 plus proof that you were here on December 21, 2000 should be submitted. You don’t have to have a document with December 21, 2000 specifically on it. School records, tax returns, driver’s licenses, pay stubs, utility bills, insurance documents, bank statements etc. with a 2000 and 2001 date would suffice, as long as it can be implied based on those that you were here on December 21, 2000. Supplement A to I-485 plus the extra $1000 fee should also be included.
245(i)
The two scenarios described above falls under the Immigration and Nationality Act (INA) § 245(i). Immigration lawyers, judges, officers, in dealing with people who crossed the border in marriage to U.S. citizen cases, simply ask if he or she “has 245(i)”. It is a shortcut way of asking whether you are a beneficiary of a petition filed on or before January 14, 1998, or the beneficiary of a petition filed on or before April 30, 2001 who also meets the December 14, 2000 physical presence requirement.
Simple Examples
For all examples, B is the foreigner who enters without inspection and eventually gets married to a US Citizen.
1. Can Get a Green Card Through Marriage
a. U.S. Citizen Brother files an I-130 petition for B brother in 1996. B crosses the Mexican border in 1997 without inspection. B marries a US Citizen in 2009. In this case, Section 245(i) protects B. B can apply for a green card through marriage. B was the beneficiary of a petition filed on or before January 14, 1998.
b. B crosses the Mexican border in 1997 without inspection. U.S. Citizen Brother files an I-130 petition for B in March 2001. B marries a U.S. Citizen in 2009. Section 245(i) protects B. B can apply for a green card through marriage. B was the beneficiary of a petition filed on or before April 30, 2001 and was physically present here on December 21, 2000.
c. U.S. Citizen Brother files an I-130 petition for B in November 1997. B crosses the Mexican border without inspection in January 1998. B married a U.S. Citizen in January 2009. Section 245(i) protects B. B can apply for a green card. B was the beneficiary of a petition filed on or before January 14, 1998, thus no need to show December 21, 2000 physical presence.
2. Can’t Get a Green Card in the U.S. Even Through Marriage
a. U.S. Citizen Brother files an I-130 petition for B in January 1999. B illegally crosses the border on January 2001. B marries a U.S. Citizen in January 2009. Section 245(i) does not protect B. B cannot apply for a green card. B was the beneficiary of a petition filed after January 14, 1998 but on or before April 30, 2001, but B does not have physical presence in the U.S on December 21, 2000.
b. B crosses the Mexican border without inspection in 1995. B married a U.S. Citizen in January 2009. Nobody ever petitioned for B. Section 245(i) does not protect B. B cannot get a green card through marriage.
c. B crosses the Mexican border without inspection in 1995. B’s U.S. Citizen brother files an I-130 petition for him on May 1, 2001. B marries a U.S. Citizen in 2009. Section 245(i) does not protect B. B cannot get a green card through marriage. The I-130 was filed after April 30, 2001.
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