INA §245(i) Generally

What is INA §245(i) ?

Section 245(i) of the Immigration and Nationality Act (INA), as amended by the Legal Immigration Family Equity (LIFE) Act and LIFE Act Amendments of 2000 (Pub. L. 106-553 and -554), enables certain individuals who are present in the United States who would not normally qualify to apply for adjustment of status in the United States to obtain lawful permanent residence (get a Green Card) regardless of:

• The manner they entered the United States;
• Working in the United States without authorization; or
• Failing to continuously maintain lawful status since entry.

To qualify for this provision, you must be the beneficiary of a labor certification application (Form ETA 750) or immigrant visa petition (Forms I-130, Petition for Alien Relative, or I-140, Immigrant Petition for Alien Worker) filed on or before April 30, 2001. You must complete Supplement A to Form I-485, Application to Register Permanent Residence or Adjust Status, to apply under Section 245(i) provisions and submit it with your Form I-485. In most cases, you must also pay an additional $1,000 fee.

Eligibility Criteria

You may be eligible to receive a Green Card through section 245(i) if you:

• Are the beneficiary of a qualified immigrant petition (Form I-130 or I-140) or application for labor certification (Form ETA-750) filed on or before April 30, 2001;
• Were physically present in the United States on Dec. 21, 2000, if you are the principal beneficiary and the petition was filed between Jan. 15, 1998, and April 30, 2001;
• Are currently the beneficiary of a qualifying immigrant petition (either the original Form I-130 or I-140 through which you are grandfathered or through a subsequently filed immigrant petition) or an application for labor certification;  
• Properly file Form I-485, Application to Register Permanent Residence or Adjust Status, and Form I-485 Supplement A;
• Pay the $1,000 fee (unless exempt);
• Are physically present in the United States at the time you file Form I-485 and Supplement A;
• Have a visa immediately available to you;
• Are admissible to the United States or eligible for a waiver of inadmissibility or other form of relief; and
• Warrant the favorable exercise of discretion (this means the positive factors in your case outweigh the negative factors).

Depending on the circumstances, a spouse or child of a grandfathered individual may also be a grandfathered or may be eligible to adjust status as a dependent under section 245(i) of the INA.

Qualifying Petition or Labor Certification

Labor certifications or visa petitions filed to preserve an individual’s adjustment eligibility under Section 245(i) must be both “properly filed” (signed and submitted with the correct fees) and “approvable” (meritorious based on the facts and “non-frivolous”) when filed. To meet this test at a minimum, the filing must be timely (filed by April 30, 2001) and meet all applicable substantive requirements (“approvable when filed”). Deficiencies such as lack of fee or original signature disqualify the submissions.

If the Petition Or Labor Certification Is Withdrawn, Denied Or Revoked

If you withdraw the petition, or if USCIS or the former Immigration or Naturalization Service (INS) denied or revoked your petition after approval, you may still be grandfathered, depending on whether the visa petition or labor certification was “approvable when filed.” To remain eligible, the changed circumstances must relate to factors beyond your control rather than the merits of the petition at the time of filing.

If the Petitioner Dies Or The Employer Otherwise Is Unable To Maintain The Petition

As long as the petition or labor certification application was “approvable when filed,” you should remain grandfathered if the:

• Petitioner dies;
• Family member who filed the petition divorces you;
• Employer who filed the labor certification or subsequent Form I-140 goes out of business;
• Petitioner or the employer chooses to withdraw the petition or labor certification; or
• Petitioner or employer is otherwise not able to maintain the petition or labor certification application.

Adjustment of Status Under INA §245(i)

You should submit all of the following evidence with your Form I-485:

• Two passport-style photos;
• A copy of your government issued identity document with photograph;
• A copy of your birth certificate;
• A copy of your passport page with a nonimmigrant visa (if applicable);
• A copy of your passport page with admission (entry) or parole stamp (if applicable);
• Form I-94 Arrival/Departure Record (if applicable);
• Form I-693, Report of Medical Examination and Vaccination Record;
• Form I-864, Affidavit of Support, if applicable;
• Form I-944, Declaration of Self-Sufficiency, if applicable;
• Either the concurrently filed immigrant petition or Form I-797, Notice of Action, for the pending or approved immigrant petition that you are using as your basis of adjustment, if you are not adjusting based on the grandfathered immigrant petition;
• The correct Form I-485 filing fee; and
• Supplement A to Form I-485 with:
  • A copy of the immigrant petition or labor certification or Form I-797, Notice of Action, that you are using as the basis for 245(i) grandfathering;
  • Proof of your physical presence in the United States on Dec. 21, 2000, if applicable; and
  • $1,000 fee, if applicable.

USCIS Web Page on 245i