CASE: I-485 approval under the INA 245(i) provision
Our client is from India who came to the U.S. on a B-2 visitor’s visa in September 2002. Since that time, she never left the United States.
In December 1986, our client’s uncle filed an I-130 (fourth preference) petition for her father. This I-130 petition was approved. At the time the I-130 Petition was approved, our client was a minor and was a derivative beneficiary. Our client was not able to immigrate on that petition though because she aged out.
Later, our client’s father filed an I-130 petition on her behalf on January 9, 2006. This Petition was approved in the same year.
Our client contacted us around September of 2010 for consultation and sought legal assistance for her possible adjustment of status application. Attorney Sarmiento met them in the Washington DC area.
After consultation, we determined that she was eligible for adjustment of status under INA 245(i). Our client retained us in October 2010.
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 those other than 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 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.
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.
Our client was the beneficiary of a petition before January 14, 1998 (as a derivative beneficiary of the F-4 petition filed by her uncle to her father on December 29, 1986), and thus was eligible to adjust under INA Section 245(i) despite her overstay, without any need to show physical presence in the United States in December 14, 2000.
Once retained, our office prepared and filed her adjustment of status application under the 245(i) provision. Everything went smoothly and the receipt notices and fingerprint appointment all came on time. We thoroughly prepared our client prior to her interview as well.
On February 1, 2011, our client was interviewed at the Louisville, Kentucky USCIS Field Office.
Due to the complexity of the case, we made sure the officer was clear about our client’s 245i eligibility. The interview went well; however, the priority date retrogressed before her adjustment of status applicant was approved.
Finally, priority dates opened again. On February 4, 2013 our client’s I-485 application was approved. She finally became a green card holder.
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