Eligibility Under Sections 245(i) and 245(k)
Posted May 01, 2002



Section 245(i), the Penalty Fee Provision

Section 245(i) of the Immigration and Nationality Act (INA) allows persons who are the beneficiaries of immigrant visa petitions or of labor certification applications (LCs) filed on or before January 14, 1998, to eventually adjust status in the U.S. despite having fallen out of status or having entered without inspection. There is also a limited extension allowing people who have the petition or LC filed by April 30, 2001 to benefit, though there are additional requirements in such cases. Prior to the enactment of section 245(i), one who reaches the final stage of Green Card processing and turns out to be ineligible for adjustment must instead “consular process” for his or her permanent residency by undergoing an interview at a U.S. consulate abroad. (There remain some limited exceptions, the main one being “immediate relatives:” parents, spouses, and children (under 21 years of age) of U.S. citizens, so long as they entered legally.)

For persons with status problems consular processing has significant risks imposed by the 1996 immigration law, mainly the prospect of being barred for three or ten years from re-entering the United States. Section 245(i) enables persons who have employment- or family-based immigrant petitions or labor certifications, filed on or before April 30, 2001, to avoid consular processing when the time comes to complete their Green Card cases and, instead, be able to complete the entire procedure in the U.S. As we have reminded many callers and readers of the MurthyBulletin, this provision does not affect the timing of the adjustment but only affects whether, when the time eventually comes to adjust, the person will be eligible to file the adjustment application (Form I-485 and related documents) in the U.S., as opposed to having to go for a visa interview abroad.

It is important to keep in mind that Section 245(i) does not give a person permission to remain in the U.S. in expired status. For those who have not been apprehended by INS in the meantime, however, 245(i) provides the opportunity to retroactively remedy the out-of-status problem at the time of filing for adjustment of status.

INS has issued guidance clarifying who is eligible for 245(i) :

a. Even if the case under which the person ultimately obtains the Green Card involves a completely different petition from the one that was filed earlier, the applicant can still benefit from that earlier filing. A particular person - not an application or petition - is 245(i) eligible. This means that if a labor certification application or an immigrant petition is filed on or before April 30, 2001, then even if the alien eventually adjusts status based upon a different petition filed after April 30, 2001, s/he is still eligible for 245(i) adjustment.

b. A labor certification or a petition filed on or before January 14, 1998, which was denied, withdrawn, revoked, or undecided can still be the basis for 245(i) eligibility, so long as it was “approvable when filed.” If a petition was fraudulent or without any legal or factual basis or filed without the fee payment, it would not meet the “approvable” standard. If a petition requires additional documentation a reasonable opportunity would generally be provided to submit such information and thereby, hopefully, establish that the petition was indeed approvable.

c. A visa lottery application cannot be the basis for 245(i) eligibility since it is an application to the State Department (DOS) and not an INS petition or a labor certification application. However, if the lottery winner did have a pre-April 30, 2001 labor certification or immigrant petition, then s/he would be able to adjust.

d. If a person is 245(i) eligible, his or her spouse and children can also benefit, even if the family members adjust at a different time from the principal applicant. This applies even if the child reaches the age of 21 or the spouse obtains a divorce after April 30, 2001.

e. In the above situation, the INS has recently acknowledged the position of AILA that if the marriage or birth took place after filing the qualifying labor certification or petition, but prior to approval of the principal applicant’s adjustment, the family members are still eligible to adjust and benefit from 245(i).

The Law Office of Sheela Murthy is pleased that AILA's lobbying efforts have resulted in the INS classifying all of these categories as “grandfathered” beneficiaries who can take advantage of the adjustment provisions.



Section 245(k)

Section 245(k) enables a person who is adjusting status in an employment-based category (whether on the basis of a labor certification or in one of the special Green Card categories that does not require a labor certification or job offer) to adjust, even if s/he has been out of status or worked without authorization for less than 180 days. This provision does not require an immigrant petition or labor certification to have been filed on or before any particular date and there is also no penalty fee involved.

A useful tip for those hoping to benefit from 245(i) or 245(k) : Keep a personal immigration file which should contain the originals and clean photocopies of documents. These documents should include all approval notices from the INS; receipt notices for INS applications and petitions; I-94 cards (latest original will probably be stapled into passport - keep photocopies of current and previous I-94s in the file); Forms I-20, IAP-66 (if applicable); pay stubs from current and prior U.S. employers and experience letters from prior (U.S. and overseas) employers indicating dates of work and the nature of the work; transcripts from all schools / colleges / universities attended; copy of current and prior employment cards; and any other documents that may be relevant.

The above documents are important to maintain for several purposes. First of all, some of these items may need to be included with an application or petition to change status or at the time of filing an extension of status with a different employer. Even more importantly, at the time of filing for adjustment of status it is necessary to show that the applicant has maintained valid legal status (subject to the 180 day period for employment-based cases under 245(k) and the exception for applications by immediate family members of U.S. citizens).

Persons with a petition or LC filed after January 14, 1998, up to April 30, 2001 must also document that they were "physically present" in the U.S. as of December 21, 2000.

Although organization experts will advise you to trash documents that do not appear relevant in the immigration context, it is better to keep them in a file. For example, the fact that the receipt notice indicates one filed for change or extension of status prior to the expiration of his/her present status is sometimes the only proof one has not fallen out of status, even if INS takes several months to adjudicate a case. In such a case, the approval notice could be misleading so the receipt notice may come in handy. Every case is different. A person who may have difficulty proving maintenance of status should consult with an attorney. If you do not have an attorney and wish to consult one, please send an eMail to law@murthy.com.

© The Law Office of Sheela Murthy, P.C.