CASE: Marriage Based Adjustment of Status / 245(i)
LOCATION: Chicago, IL
Our Korean client came to the U.S. without inspection and admission by crossing the U.S./Canada border in March 1999. When she came to the United States, she was only 3 years old. Thereafter, she married her U.S. husband in May 2015. Currently, she resides in Illinois with her husband and daughter.
Our client contacted us around February of 2016 for consultation and sought legal assistance for her case. Initially, our office determined that she is eligible for I-601A provisional waiver. However, after the care review of her case and story, we determined that she is eligible for adjustment of status under INA 245(i). Our client retained us on February 5, 2016.
The basis of her 245(i) eligibility was that her father was a beneficiary of the labor certification which was filed on April 23, 2001. Therefore, she was a beneficiary of a labor certification filed after January 15, 1998 and before April 30, 2001. Moreover, according to the Robert Bach “Accepting Applications for Adjustment of Status Under Section 245(i) of the “Immigration and Nationality Act” memorandum (“Bach Memo June 10, 1999)
“Section 245(i) defines the term “beneficiary” to include a spouse or child ‘eligible to receive a visa under section 203(d) of the Act’ This applies to spouses or children ‘accompanying or following to join’ the principal alien….
The spouse or child of a grandfathered alien is also grandfathered for 245(i) purposes. This means that the spouse or child is grandfathered irrespective of whether the spouse or child adjusts with the principal. The spouse or child also are grandfathered even after losing the status of spouse or child, such as by divorce or by becoming 21 years of age…
Often, a principal alien who has filed a visa petition or labor certification application will have a “child” who reaches the age of 21, and thus no longer meet the statutory definition of child, before the petition or application is approved or the principal alien adjusts status. However, such an “aged-out” beneficiary will remain a beneficiary for the purpose of determining whether he or she may use section 245(i) to adjust status.”
Thus, our client was grandfathered by her father’s Labor Certification, and is eligible for 245(i).
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.
On April 28, 2016, our office initially filed I-130 petition for our client. While the I-130 petition was pending, our office filed their I-485 adjustment of status applications under the 245(i) category for our client on June 1, 2016. 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 October 31, 2016, our client was interviewed at the Chicago, Illinois USCIS Field Office. Attorney Sung Hee (Glen) Yu, Esq. from our office accompanied our clients as well. The interview went well, and her adjustment of status application was approved on November 1, 2016. After a long wait, our client is finally a green card holder.