CASE: Family Based Adjustment of Status (F2B) / 245(i)
CLIENT: Indian
LOCATION: Cleveland, OH
Our client came to the U.S. from India and applied for his permanent residency three times in the past. His past efforts were unsuccessful and applications were denied due to numerous and complex issues (aging out, unlawful presence, priority dates). His U.S. citizen uncle filed an I-130 petition for his father in February 1989. With this I-130 petition, his parents came to the United States and became green card holders. Although our client was a derivative beneficiary of this I-130 petition, at the time of his adjustment of status, our client’s application was denied due to the “aging out” issue. After the first denial, our client’s father filed an I-130 F2B petition for our client and our client’s employer also filed an EB-2 I-140 petition as well. Nevertheless, our client’s adjustment of status application was denied due to the “unlawful presence” that he incurred unbeknownst to him (he changed his status in the U.S. from B-2 to H-1B, but there was a gap).
Our client contacted us around July of 2015 for consultation and sought legal assistance for his adjustment of status. After consultation, we determined that he is eligible for adjustment of status under INA 245(i) since his uncle’s I-130 petition grand-fathered our client’s case. Our client retained us on July 29, 2015.
Section 245(i) of the INA allows certain foreign nationals to become permanent residents of the United States despite entering without inspection (EWI) or overstaying (if beneficiary of petitions filed not by an immediate relative). Immigrants are barred from adjusting their status if they entered the United States without first being inspected and admitted by a Customs and Border Patrol officer and if they have either failed to maintain lawful status or been unlawfully employed in the country, with certain exceptions. Section 245(i) was first added to law in 1994 to allow certain people who otherwise would not be eligible to adjust their status to be able to do so upon payment of a $1,000 fine.
Four years later, on January 14, 1998, Congress phased Section 245(i) out of law. Immigrants and their families who had already begun the process of changing their status under Section 245(i) by January 14, 1998 were grandfathered into the section’s benefits. However, this left thousands of otherwise qualified persons who had not begun the process unable to adjust status in the United States. They could not return to their countries to begin the legal process of obtaining their permanent residency in the United States also without being subject to either a three- or a 10-year bar upon 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 allowed immigrants who had labor certifications or visa petitions filed on their behalf between 1998 and April 30, 2001, to qualify for adjustment of status. Those who were beneficiaries of petitions filed prior to January 14, 1998 could still adjust despite an EWI record, and those people do not have to meet the December 2000 physical presence requirement.
As mentioned above, our client, despite “aging-out” and despite not having physical presence in December 2000, is eligible to adjust status based on the approved I-130 F2b Petition filed by his father because he is INA 245(i) eligible as the “beneficiary” of an I-130 Petition filed by his uncle to his father in February 1989. We also argued that our client was specifically listed as a derivative beneficiary of this I-130. Therefore, he is grandfathered under 245(i) and even though he “aged-out”, he remains a beneficiary for purposes of 245(i). Moreover, since the I-130 Petition was filed in February, 1989, which is before January 14, 1998, he does not need to prove physical presence in December 2000.
On August 6, 2015, our office filed his I-485 adjustment of status application under the 245(i) category for our client. Everything went smoothly and the receipt notices and fingerprint appointment all came on time. Prior to the interview, we thoroughly prepared our client as well. On January 7, 2016, our client was interviewed at the Cleveland, Ohio USCIS office. Attorney JP Sarmiento from our office accompanied our client. Eventually, on January 13, 2016, our client’s I-485 adjustment of status application was approved.