CASE: Marriage Based Adjustment of Status / 245(i)
Our Mexican client came to the U.S. without inspection and admission by crossing U.S./Mexico border in October 1999. She has stayed here ever since. She got married to a US Citizen and in 2001 and her husband filed an I-130 for her in March 2001. She gave birth to a U.S. Citizen child thereafter. However, her first husband left her while pregnant, and the I-130 was denied. Yet she remained in the United States. Thereafter, she married her second U.S. husband in July 2008.
Our client contacted us around June of 2014 for consultation and sought legal assistance for her adjustment of status. After consultation, we determined that she is eligible for adjustment of status under INA 245(i), if we can only show physical presence in December 2000. Our client retained us on June 11, 2014.
Prior to retaining our firm, her U.S. citizen ex-husband filed an I-130 petition for her back in March 2001. Therefore, she was a beneficiary of an immigrant petition filed after January 15, 1998 and before April 30, 2001. Though the I-130 was denied, we explained that the I-130 petition was “approvable when it was filed” because they had a child together.
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. They have to prove physical presence in December 2000.
The USCIS has a list of “possible” documents to prove physical presence. However, our client did not have any of these. “Employment records” typically mean pay stubs, or W2s, or any official government document pertaining to work. She had none of those because she just got paid in cash. She cleaned houses when she first came. Thus, we argued that a letter from her ex-employer should suffice as “employment record”. We also wrote that the fact that she got married early in 2001 means that she met her husband in the US at or prior to December 2000. It was a gray area argument but our client was willing to go forth with it.
On November 19, 2014, our office filed their I-485 adjustment of status applications under the 245(i) category. Everything went smoothly and the receipt notices and fingerprint appointment all came on time. There was no RFEs even. We thoroughly prepared our client prior to her interview as well.
On February 23, 2015, our client was interviewed at the Cincinnati, Ohio 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 February 26, 2015. After a long wait, our client is finally a green card holder.