WHAT IS SECTION 245(I) OF THE IMMIGRATION AND NATIONALITY ACT?
Section 245(i) of the Immigration and Nationality Act (INA) allows certain noncitizens physically present in the United States to adjust status to a lawful permanent resident despite being ineligible to adjust status under INA 245(a) because they entered the United States without inspection, violated their nonimmigrant status, were employed in the United States without authorization, or are otherwise barred from adjustment by INA 245(c).
Those grandfathered under INA 245(i) can waive their immigration violation(s) and adjust status upon payment of a $1,000 fee, which essentially serves as a fine.
WHO IS GRANDFATHERED UNDER INA 245(I)?
Immigrants who are the beneficiary of a labor certification or family-based visa petition (or less common Immigrant Petition by Alien Entrepreneur (Form I-526))that was filed on or before April 30, 2001, would be grandfathered under INA 245(i). The labor certification or petition must have been approvable when filed, even if it was never approved. Approvable when filed means that it was properly filed, meritorious in fact; and Non-frivolous. INA 245(i) also grandfathered derivative beneficiaries of theses labor certifications and visa petitions.
The basis of a grandfathered individual’s eventual adjustment, however, is not restricted to the application or petition filed to preserve adjustment eligibility. The grandfathered individual’s application for adjustment of status may be based on any adjustment provision available to the individual at the time of adjustment and usually won’t be based on the grandfathering petition or labor cert.
For example, a qualifying Form ETA-750 filed on or before Jan. 14, 1998, preserves the individual’s eligibility to adjust status after that date. However, the filed ETA-750 does not commit that individual to adjustment on the basis of an employment based petition. If, after Jan. 14, 1998, the individual was named as beneficiary in a family based petition or won an immigrant visa in the diversity lottery, they may adjust status on the new basis. (The immigrant visa won in the diversity lottery will not grandfather an individual, but may be used as a basis of adjustment by an individual who is already grandfathered under section 245(i)).
HISTORY, AMENDMENTS, AND EXTENSIONS
In 1997, 245(i) was extended and revised. Qualified applicants no longer had to submit their application for adjustment of status by October 1, 1997. Rather, an immigrant visa petition or labor certification application had to be filed on the principal applicant’s behalf on or before a newly established deadline of January 14, 1998. However, as long as this occurred no earlier than October 1, 1994, the application for adjustment of status itself (for the principal applicant or eligible spouse and children) could be filed at any time; even years after the filing deadline.
In 2000, 245(i) was extended and revised again for the last time. The Legal Immigration Family Equity (LIFE) Act Amendments of 2000 set a new deadline of April 30, 2001, for the filing of the required immigrant visa petition or labor certification application on behalf of the principal applicant. As long as the filing deadline was met, the application for adjustment of status could be filed at any time. The 2000 revision of 245(i) also required that, if the immigrant visa petition or labor certification application was filed after January 14, 1998, the principal applicant had to have been physically present in the United States on December 21, 2000 (the date of enactment of the LIFE Act Amendments).
CURRENT ELIGIBILITY REQUIREMENTS FOR 245(I)
Under current law, an undocumented immigrant can apply for LPR status under Section 245(i) if he or she meets the following conditions:
- 1. Is the beneficiary of a qualified immigrant visa petition or labor certification application filed on or before April 30, 2001 (with “beneficiary” including the principal for whom the petition or application was filed or an eligible spouse or child)
- 2. Was physically present in the United States on December 21, 2000 (if he or she is the principal beneficiary and the petition or application was filed between January 15, 1998, and April 30, 2001)
- Pays the $1,000 fee (unless exempt)
- 3. Is physically present in the United States at the time the adjustment of status application is filed
- 4. Has a visa immediately available
- 5. Is admissible to the United States or eligible for a waiver of inadmissibility or other form of relief
- Warrants the favorable exercise of discretion
To file for adjustment under INA 245(i) you must file a Supplement A to Form I-485 along with all the forms and documents required for adjustment pursuant to whatever grounds you are adjusting status under.
WILL IT BE EXTENDED AGAIN?
Some people anticipate this section being extended one day as a measure to help resolve the current immigration problems. Congress retains the authority to either extend the filing deadline or eliminate it. If Congress acts on this issue, it is estimated that as many as 2.3 million unauthorized immigrants living in the United States may be able to seek a green card through sponsorship by a spouse, other family member, or employer.
As we get further and further away from 2001 it seems less and less likely though. Though, May 13, 2021, Senator Catherine Cortez Masto (D-Nevada) reintroduced the Fairness for Immigrant Families Act (S.1638) that, among other things, would extend the filing deadline for §245(i) from April 30, 2001, to five years following the enactment of the Fairness for Immigrant Families Act.
The information below is taken directly from the USCIS Policy Manual, Volume 7, Chapter 2:
Qualifying Immigrant Visa Petition or Labor Certification Application
A qualifying immigrant visa petition or permanent labor certification application is defined as a petition or application that was both “properly filed” on or before April 30, 2001 and “approvable when filed.”
A qualifying immigrant visa petition may include any of the following forms:
- Petition for Alien Relative (Form I-130)
- Immigrant Petition for Alien Worker (Form I-140)
- Petition for Amerasian, Widow(er), or Special Immigrant (Form I-360)
- Immigrant Petition by Alien Entrepreneur (Form I-526)
A qualifying permanent labor certification application refers to an Application for Alien Labor Certification (ETA Form 750).
1. Properly Filed
Qualifying Immigrant Visa Petition
For purposes of INA 245(i), an immigrant visa petition is considered properly filed if:
- The petition was physically received by legacy Immigration and Naturalization Service (INS) on or before April 30, 2001, or, if mailed, postmarked on or before April 30, 2001, regardless of when INS received it; and
- The petition was submitted with the correct fees and proper signature.
A petition received with either an illegible or missing postmark is timely filed if INS physically received the petition by May 3, 2001, and stamped it with a “Filed Prior to 245(i) Sunset” stamp.
Qualifying Permanent Labor Certification Application
A permanent labor certification application is properly filed if it was filed on or before April 30, 2001 and accepted for processing according to the regulations of the Secretary of the U.S. Department of Labor (DOL) that existed at the time of filing.
During the INA 245(i) qualifying time period and under authority delegated by DOL, permanent labor certification applications were generally filed directly with the state workforce agency (SWA) (such as a State Employment Service Agency) in the state where the offered job was located. The SWA indicated the filing date or receipt date on the first page of the ETA Form 750, Part A in the “Endorsements” block located in the lower right corner, specifically in the area indicated as “L.O.” (which indicates “local office”).
Therefore, a permanent labor certification application is considered properly filed where the SWA date-stamped the application, thereby indicating the application was complete and accepted for processing. Such a complete application remains properly filed, notwithstanding any need for the employer to amend the application or provide additional documents and information as required by DOL to ultimately obtain a favorable adjudication of the application.
Permanent labor certification applications received by a SWA that do not bear a “Filed Prior to 245(i) Sunset” stamp may meet INA 245(i) filing requirements if they were given a receipt date of no later than April 30, 2001. USCIS accepts the receipt date that the DOL or SWA ultimately assigned to the permanent labor certification application.
2. Approvable When Filed
An immigrant visa petition or permanent labor certification application is considered “approvable when filed” if the petition or application was:
- Properly filed;
- Meritorious in fact; and
- Non-frivolous.
Therefore, once the petition or application is determined to have been properly filed, the petition or application is considered approvable when filed if it is both meritorious in fact and non-frivolous.
Meritorious in Fact: Immigrant Visa Petition
To be considered “meritorious in fact,” the beneficiary of an immigrant visa petition must have met all the substantive eligibility requirements at the time of filing for the specified immigrant category. Stated another way, the immigrant visa petition is meritorious in fact if the petition merited a legal victory upon filing had it been fully adjudicated, even if the petition was not fully processed or actually approved.
For example, a beneficiary claiming to be the child of a U.S. citizen must have met the definition of a child at the time the immigrant petition was filed. In the case of a marriage-based immigrant visa petition, the marriage must have been bona fide at its inception. USCIS will consider all available evidence to determine if the beneficiary met all the eligibility requirements at the time of filing, including evidence of fraud.
Meritorious in Fact: Permanent Labor Certification Application
The standard for determining whether a permanent labor certification application is meritorious in fact is different than for immigrant petitions: whereas the substantive eligibility requirements for immigrant petitions are fixed at the time of filing, that is not the case for permanent labor certification applications. Specifically, the terms and conditions of employment stated in the original application (such as job qualifications and rate of pay) are subject to the requirements as stated on the application for permanent labor certification.
A permanent labor certification application is considered meritorious in fact if:
- The employer filing the application was extending a bona fide offer of employment;
- The employer had the apparent ability to hire the beneficiary; and
- There is no evidence of fraud.
Accordingly, a properly filed labor certification application is presumed to be meritorious in fact if the application is non-frivolous and if no apparent bars to approval existed at the time it was filed.
Non-Frivolous
An immigrant visa petition or permanent labor certification application is “frivolous” if the petition or application is deemed to be “patently without substance.” Therefore, a non-frivolous petition or application is one filed in good faith and is based on a reasonable belief that there is some basis in law or fact for approval; a frivolous filing is one completely lacking in legal merit and is expected to be denied.
Beneficiary of Qualifying Immigrant Visa Petition or Permanent Labor Certification Application
1. Special Considerations for Principal Beneficiaries
A principal beneficiary for purposes of INA 245(i) grandfathering is either:
- The noncitizen named as the direct beneficiary on the qualifying immigrant visa petition; or
- The noncitizen named on the qualifying permanent labor certification application as the person to whom the U.S. employer is extending an offer of employment.
Substituted Principal Beneficiary of a Permanent Labor Certification Application
A noncitizen may be eligible to adjust under INA 245(i) if the employer who filed a qualifying permanent labor certification application properly substituted the noncitizen as the beneficiary of the application effective on or before April 30, 2001. The substitution makes the original beneficiary ineligible for 245(i) adjustment based on that application.
| Date | Event |
|---|---|
| March 1, 1998 | An employer properly files a permanent labor certification application for an employee that was approvable when filed and which DOL ultimately approved. |
| April 1, 2001 | The employer substituted a new employee for the original employee because the employer no longer intended to use the approved labor certification application for the original employee. The employer files an employment-based immigrant visa petition for the new employee, requesting substitution and using the labor certification application initially approved for the original employee. |
| June 1, 2003 | The new employee files an adjustment of status application based on the petition filed by the employer. |
2. Special Considerations for Derivative Beneficiaries
Grandfathering Eligibility
A qualifying immigrant visa petition or labor certification application may serve to grandfather the principal beneficiary’s immediate family members at the time the visa petition or labor certification application was filed (his or her spouse and child(ren)) as grandfathered derivative beneficiaries. The spouse or child does not have to be named in the qualifying petition or application and does not have to continue to be the principal beneficiary’s spouse or child. As long as an applicant can demonstrate that he or she was the spouse or child (unmarried and under 21 years of age) of a grandfathered principal beneficiary on the date the qualifying petition or application was properly filed, the applicant is grandfathered and eligible to seek INA 245(i) adjustment in his or her own right.
A derivative beneficiary who qualifies as a grandfathered noncitizen may benefit from INA 245(i) in the same way as a principal beneficiary. If the derivative beneficiary meets all eligibility requirements, the beneficiary may adjust despite an entry without inspection or being subject to the specified adjustment bars.
Underlying Basis for Adjustment
If a grandfathered derivative beneficiary remains the spouse or child of the grandfathered principal beneficiary, the derivative beneficiary may accompany or follow to join the principal beneficiary, provided the principal beneficiary is adjusting status under INA 245(i). In this case, the grandfathered principal beneficiary is the principal adjustment applicant and the grandfathered derivative beneficiary is the derivative applicant.
A grandfathered derivative beneficiary may also adjust under INA 245(i) in his or her own right, on some basis completely independent of the grandfathered principal beneficiary. This is true whether or not the grandfathered derivative beneficiary remains the grandfathered principal beneficiary’s spouse or child. For instance, a grandfathered derivative beneficiary spouse who becomes divorced from the grandfathered principal beneficiary after the qualifying petition or application is filed is still a grandfathered noncitizen eligible to seek adjustment independently under 245(i). Similarly, a grandfathered derivative beneficiary child who marries or reaches 21 years of age after the qualifying petition or application is filed is still grandfathered and eligible to seek INA 245(i) adjustment on his or her own basis through a different petition.
| Date | Event |
|---|---|
| January 1, 2000 | An employer files a permanent labor certification application on behalf of a married employee. The married employee is the principal beneficiary of the permanent labor certification application. The application is determined to be approvable when filed and the married employee noncitizen is a grandfathered noncitizen. As the employee was married at the time the labor certification application was filed, the employee’s spouse is the derivative beneficiary and is also a grandfathered noncitizen. |
| January 1, 2003 | The employee and spouse divorce. |
| Today | The employee’s former spouse is selected in the diversity visa program. |
3. Determining Whether An Adjustment Applicant Qualifies as Grandfathered Noncitizen for 245(i)
The following flowchart provides a step-by-step process for determining whether an adjustment applicant meets the definition of a grandfathered noncitizen. In addition to being a grandfathered noncitizen, INA 245(i) applicants must also meet all other eligibility requirements to adjust under 245(i).
| Step | If yes, then… | If no, then… |
|---|---|---|
| Step 1: Is the applicant a principal or derivative beneficiary of an immigrant visa petition? | Go to Step 3. | Go to Step 2. |
| Step 2: Is the applicant a principal or derivative beneficiary of a permanent labor certification application? | Go to Step 3. | The applicant is not eligible for 245(i) adjustment. |
| Step 3: Was the petition or application filed on or before April 30, 2001?[37] | Go to Step 4. | The applicant is not eligible for 245(i) adjustment. |
| Step 4: Has the applicant previously obtained LPR status on the basis of the petition or application? | The applicant is not eligible for 245(i) adjustment. | Go to Step 5. |
| Step 5: Was the petition or application properly filed? | Go to Step 6. | The applicant is not eligible for 245(i) adjustment. |
| Step 6: Was the petition or application approvable when filed? | The applicant is a grandfathered noncitizen. | The applicant is not eligible for 245(i) adjustment. |
4. Effect of Grandfathering
Once a 245(i) adjustment applicant establishes that he or she is a grandfathered noncitizen, the applicant remains grandfathered and future eligibility for adjustment under INA 245(i) is preserved until the applicant adjusts to LPR status. The applicant may use the qualifying petition or application as the basis for adjustment of status if the petition or application is still valid. In addition, the applicant may seek to adjust under another family-based, employment-based, special immigrant, or diversity visa immigrant category for which the applicant is eligible.
Effect on Lawful Status and Unlawful Presence
The fact that a noncitizen is determined to be a grandfathered noncitizen for INA 245(i) purposes does not confer any immigration status on the noncitizen nor does it place the noncitizen in a period of stay authorized by the Secretary of Homeland Security for purposes of stopping the accrual of any unlawful presence pursuant to INA 212(a)(9).
A noncitizen’s nonimmigrant status is not affected by the fact that he or she is eligible to seek 245(i) benefits.
D. Current Family Members of Grandfathered Noncitizens
In general, today’s principal adjustment applicant’s spouse or child(ren) may also adjust status if “accompanying” or “following-to-join” the principal. A spouse or child is “accompanying” the principal when seeking to adjust status together with the principal or within 6 months of when the principal became a permanent resident; the spouse or child is considered to be following-to-join if seeking to adjust more than 6 months after the principal became a permanent resident.
The spouse and child(ren) as of the date of adjustment accompanying (or following-to-join) a principal INA 245(i) applicant (who is a grandfathered noncitizen) are eligible to seek adjustment under 245(i) even though they are not grandfathered noncitizens in their own right. The spouse and child(ren) may also benefit from INA 245(i) provisions allowing applicants to adjust despite an entry without inspection or being subject to the specified adjustment bars. If the spouse and child(ren) were properly inspected and admitted or inspected and paroled (and are not subject to the INA 245(c) bars) they do not need to file a Supplement A. The spouse and child(ren) may simply seek adjustment under INA 245(a) by filing only the Application to Register Permanent Residence or Adjust Status (Form I-485).
1. Grandfathered Principal Beneficiary’s Spouse and Children
A noncitizen may be eligible to adjust as a grandfathered derivative beneficiary under INA 245(i) in his or her own right or as an accompanying (or following-to-join) spouse or child if:
- The noncitizen demonstrates that he or she was the spouse or child (unmarried and under 21 years of age) of a grandfathered principal beneficiary at the time a qualifying petition or application was properly filed; and
- The noncitizen is still the spouse or child of the principal beneficiary.
A noncitizen who became the spouse or child of a grandfathered principal beneficiary after the qualifying petition or application was filed may only seek INA 245(i) adjustment through the principal beneficiary as an accompanying (or following-to-join) immigrant. These applicants do not qualify as grandfathered derivative beneficiaries who may adjust in their own right under INA 245(i).
| Date | Event |
|---|---|
| January 1, 1998 | A noncitizen enters the United States without inspection. |
| January 1, 2000 | An employer files a permanent labor certification application on behalf of the noncitizen. The noncitizen is unmarried at time of filing. |
| January 1, 2002 | The noncitizen marries a noncitizen and has a child. |
| January 1, 2004 | The employment-based immigrant visa petition filed on the noncitizen’s behalf is approved. The noncitizen applies for adjustment of status, as do the spouse and child. |
As a principal beneficiary of the qualifying permanent labor certification application, the noncitizen is grandfathered and eligible to file for adjustment under INA 245(i). Because the noncitizen married and had the child after the qualifying application was filed, the spouse and child are not grandfathered derivative beneficiaries and may not adjust in their own right under 245(i). The spouse and child, however, may still seek INA 245(i) adjustment (or INA 245(a) adjustment, if eligible) as the principal beneficiary’s accompanying (or following-to-join) spouse and child under INA 203(d).
Eligibility of Grandfathered Principal Beneficiary’s Spouse or Child
The following chart provides a summary of whether the spouse or child of a grandfathered principal beneficiary may be grandfathered in his or her own right or eligible to accompany or follow to join the grandfathered principal beneficiary.
| When Was Relationship Established? | Eligible as an Accompanying or Following-to-Join Applicant? | Eligible as a Grandfathered Derivative Beneficiary Who May Apply to Adjust Under INA 245(i) Independently from Principal? |
|---|---|---|
| Before the qualifying petition or application was filed (on or before April 30, 2001) | Yes, if relationship continues to exist and principal beneficiary is granted LPR status (and remains an LPR) | Yes, on a different basis, whether or not relationship to principal beneficiary continues to exist. |
| After April 30, 2001 but before principal beneficiary adjusts status | Yes, if relationship continues to exist and principal beneficiary is granted LPR status (and remains an LPR) | No |
| After principal beneficiary adjusts status | No | No |
2. Grandfathered Derivative Beneficiary’s Spouse and Children
Derivative beneficiaries of a qualifying immigrant visa petition or labor certification application are grandfathered in their own right. These grandfathered derivative beneficiaries may adjust independently from the principal beneficiary of the grandfathering petition or application. Accordingly, their current spouse and children may be eligible to adjust under the usual accompanying or following-to-join rules.
Continuing Spouse or Child Relationship Required
The accompanying (or following-to-join) spouse or child must continue to have the qualifying relationship with the principal adjustment applicant (grandfathered derivative beneficiary) both at the time of filing and approval of their individual adjustment applications.
| Date | Event |
|---|---|
| July 1, 1999 | A noncitizen enters the United States without inspection with his or her child. |
| April 30, 2001 | A family-based 4th preference immigrant visa petition is properly filed on the noncitizen’s behalf and was approvable when filed. The noncitizen is the principal beneficiary of the immigrant petition. The noncitizen’s child is a derivative beneficiary. For the purposes of adjustment of status under INA 245(i), both the noncitizen and the noncitizen’s child are grandfathered. |
| June 1, 2008 | The child is now an adult and marries another noncitizen. |
| March 1, 2010 | USCIS approves an employment-based petition filed on behalf of the former child and the former child files an application for adjustment of status seeking to utilize INA 245(i). |
In this example, the noncitizen’s qualifying petition serves to grandfather both the noncitizen and the noncitizen’s child. After marrying, the child is no longer considered a child for classification purposes and therefore can no longer adjust with the grandfathered principal beneficiary as an accompanying (or following-to-join) child. However, as a grandfathered derivative beneficiary, the former child may independently adjust under a new basis. The former child’s spouse may seek to adjust as an accompanying (or following-to-join) spouse. The spouse, while not a grandfathered noncitizen based on the 1999 petition in this example, may adjust under INA 245(i) as a derivative of his or her spouse if necessary to overcome any applicable adjustment bars, or may adjust under INA 245(a) (if eligible).
The following chart provides a summary of when the spouse or child of a grandfathered derivative beneficiary of a qualifying immigrant visa petition or permanent labor certification application may be eligible to accompany or follow-to-join under INA 245(i).
| When Was Relationship Established? | Eligible as an Accompanying or Following-to-Join Applicant? |
|---|---|
| Before grandfathered derivative beneficiary adjusts status | Yes, if relationship continues to exist and derivative beneficiary remains an LPR |
| After grandfathered derivative beneficiary adjusts status | No |
E. Physical Presence Requirement
If claiming to be a grandfathered noncitizen based on a qualifying petition or application that was filed after January 14, 1998, the applicant must show that the principal beneficiary of the petition or application was physically present in the United States on December 21, 2000 to adjust under INA 245(i).
Because this physical presence requirement applies only to the principal beneficiary, the physical presence of any derivative beneficiaries on December 21, 2000 is not relevant. Grandfathered derivative beneficiaries, however, must show that the grandfathered principal beneficiary was physically present on December 21, 2000, if the qualifying petition or application was filed after January 14, 1998.
The physical presence requirement does not apply to applicants who qualify for INA 245(i) based on immigrant visa petitions and permanent labor certification applications filed on or before January 14, 1998.
| Date | Event |
|---|---|
| June 1, 1999 | A noncitizen enters the United States without inspection. |
| April 30, 2001 | A 3rd preference Petition for Alien Relative (Form I-130) is properly filed on behalf of the noncitizen and which was approvable when filed. |
In this example, the applicant is the principal beneficiary of a qualifying petition. Since the petition was filed after January 14, 1998, the noncitizen must show that he or she was physically present in the United States on December 21, 2000, to be a grandfathered noncitizen and adjust under INA 245(i).
| Date | Event |
|---|---|
| July 1, 1999 | A married couple enter the United States without inspection. |
| February 1, 2000 | A permanent labor certification application is properly filed on behalf of one spouse and was approvable when filed.That spouse becomes the principal beneficiary of the application, and the other spouse becomes the derivative beneficiary. |
| January 20, 2005 | The married couple divorces. |
| October 12, 2005 | The derivative beneficiary remarries an LPR.The LPR files a petition for the derivative beneficiary as the spouse of an LPR. |
This information was taken from the USCIS Policy Manual Volume 7, Chapter 2
Citations: 8 USC 1255
Foreign Affairs Manual: 9 FAM 503.2