CASE: Marriage Based Adjustment of Status / 245(i)
CLIENT: Ghanaian
LOCATION: Columbus, OH
Our Ghanaian client came to the U.S. without inspection and admission by crossing the U.S./Canada border in September 1991. He had a U.S. citizen ex-spouse who filed the I-130 petition for him in September 1993. This I-130 petition was later approved in February 1994. However, our client did not adjust his status at that time because his marriage to his ex-wife had ended in divorce.
Our client contacted us in December 2024 for a consultation and sought legal assistance for his case. He has a naturalized U.S. citizen son who is willing to file a new I-130 petition on his behalf. After a careful review of his case and history, we determined that he is eligible for adjustment of status under INA $\S 245(i)$. Our client retained us on December 27, 2024.
The basis of his $\S 245(i)$ eligibility is that he was a principal beneficiary of the approved I-130 petition that was filed in September 1993. Section $\S 245(i)$ of the Immigration and Nationality Act (INA) allows certain foreign nationals to become permanent residents of the United States despite entering without inspection (EWI) or overstaying (if the beneficiary of a petition filed by someone other than an immediate relative). Normally, 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, or if they have failed to maintain lawful status or been unlawfully employed. $\S 245(i)$ was first added to the 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 $\S 245(i)$ out of the law. Immigrants and their families who had already begun the process of changing their status under $\S 245(i)$ by January 14, 1998, were “grandfathered” into the section’s benefits. This change left thousands of otherwise qualified persons who had not yet begun the process unable to adjust status in the United States. Furthermore, they could not return to their home countries to begin the legal process of obtaining permanent residency in the United States without being subject to either a three- or a 10-year bar upon returning.
On December 21, 2000, Congress extended the qualifying date for $\S 245(i)$ 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 the initial deadline of January 14, 1998, like our client, could still adjust despite an EWI record, and these individuals do not have to meet the December 2000 physical presence requirement.