Legal Challenges and Considerations in 245(i) Cases
What is §245(i)?
Section 245(i) lets certain people adjust status inside the U.S. even if they entered without inspection or otherwise lack a typical path. However, you must be grandfathered by a qualifying petition or labor certification filed on or before April 30, 2001 (with some rules for physical presence on 12/21/2000).
Who may be “grandfathered”
A family I-130, employment I-140, or labor certification filed by 04/30/2001 (or by 01/14/1998 without the physical-presence rule).
The filing was proper, approvable when filed (non-frivolous, timely, and with eligibility on its face).
You are the principal named on that filing or the spouse/child who qualifies as a derivative (some people are “grandfathered” personally; others are only “eligible to adjust” through a new petition).
Important: 245(i) is technical. Therefore, we verify whether you are grandfathered vs. merely eligible to adjust based on your facts.
245(i) grandfathering allows some applicants to adjust status despite an entry without inspection. We prove it with the original filing and dates that show it was approvable when filed.
Why 245(i) matters
You may adjust in the U.S. instead of leaving for consular processing.
You can often avoid unlawful-presence bars triggered by departure.
You will pay a $1,000 penalty (Form I-485 Supplement A) as part of the process.
Immediate relative with a lawful entry?
You might not need 245(i). However, if your entry was without inspection, 245(i) may allow adjustment with a new petition (spouse/parent/child or employment) because you are grandfathered.
Old family or job filing in the 1990s/2001?
We request the receipt/approval and prove it was approvable when filed. In addition, we confirm derivative coverage for spouses/children.
Prior removal or criminal issues?
Some cases still qualify, but waivers or motions may be needed. Therefore, we review risks before filing.
Evidence checklist (sample)
Copies of the original qualifying filing (I-130/I-140 or labor cert) and receipts/approvals
Proof of timely filing and approvable when filed facts
Proof of physical presence on 12/21/2000 (if required): leases, pay stubs, bills, school or medical records
Current I-130/I-140 or other immigrant basis, if using a new petition
Civil documents, I-485 package items, and Supplement A with penalty fee
As a result, USCIS sees both the old basis for 245(i) and the current immigrant basis to adjust.
FAQs
Do I need the old petition to be approved?
Not always. If it was approvable when filed, it can still grandfather you even if later withdrawn or denied for reasons that arose after filing.
Can derivatives benefit?
Often yes. Spouses/children may be derivative beneficiaries or grandfathered depending on dates and relationships. We confirm which category applies.
What if I have unlawful presence or an EWI entry?
That is exactly why 245(i) exists. However, other bars (for example, certain crimes or prior orders) still require separate solutions.
How we help
First, we confirm whether you are grandfathered and which documents prove it. Next, we choose the best current immigrant basis. Then, we prepare the I-485, Supplement A, and evidence. Finally, we track biometrics/interview and respond to RFEs.
Ready to review a 245(i) case? Schedule a consultation or call (562) 495-0554.
Disclaimer: General information only; eligibility depends on your records and dates.
245(i) Cases Adjustment of Status. There are certain instances where one can apply for Adjustment of Status and be out of status. One such exception is called 245(i). If you had an I-130 or I-140 filed prior to April 30, 2001 and were physically present in the U.S. on December 20, 2000, then you could apply for Adjustment of Status even though years of being out of status.
However, you must know that being under 245(i) does not protect you if you are inadmissible based on a crime or fraud or other items which make somebody inadmissible.
There was an initial 245(i) which allowed filing of the I-130 or I-140 prior to January 1998. If your under this version of the 245(i), then there is no physical presence requirement as there is with the other 245(i).
When you file the Adjustment of Status under 245(i), there will be $1000 penalty. However, it is more preferable to pay this penalty than having to do a waiver, leave the U.S. and possibly not be able to return.
There are derivative beneficiaries of 245(i). Those would be spouses and children. Of course, in some respect, it will depend when these beneficiaries were acquired to determine if they fall under 245(i). This way, you do not have to wait more years to file the application.
