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What is section 245(i)?

Section 245 of the immigration law allows persons to become permanent residents without leaving the U.S. through a process called "adjustment of status". Generally, persons who entered the U.S. without being inspected by an INS officer, who have ever been unlawfully employed in the U.S. or who failed to always maintain lawful status in the U.S. are barred from adjusting their status in the U.S. (There are certain exceptions to the last two bars for "immediate relatives" of U.S. citizens and for certain EB applicants.) Sec.245(i) was first added to the law in 1994 to allow persons who qualify for green cards, but not for adjustment of status, to be able to adjust their status in the U.S. upon payment of a fine (currently $1,000). Congress phased 245(i) out of the law on January 14, 1998. However, persons who had already qualified under the law as of that date were "grandfathered" into the benefits of Section 245(i) for the rest of their lives.

The problem was that hundreds of thousands of otherwise qualified persons who missed the January 14, 1998 deadline cannot adjust status in the U.S., and cannot return to their countries to obtain green cards without being subject to either a three or a ten-year bar from returning to the U.S. These persons have been in a state of legal limbo since 1998. Congress gave a holiday present to hundreds of thousands of potential immigrants on December 15, 2000 when they extended the grandfathering date of sec. 245(i) to April 30, 2001. Not only does this extend the benefits of 245(i) to persons who had labor certifications or visa petitions (I-130, I-140 or I-360) filed on their behalf between 1998 and 2000, but it gives persons over four months AFTER the passage of the law to qualify for the benefits of 245(i).

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 Murthy Link.

USCIS Memo issued by Donald Neufeld on July 14, 2008

In general, Section 245(a) allows an admissible alien who was inspected and admitted or paroled into the United States to apply for permanent resident status from within the United States if the alien is the beneficiary of an approved immigrant visa petition and has an immigrant visa number immediately available. Section 245(c) establishes eight (8) bars to adjustment under Section 245(a). For certain employment-based adjustment applicants, section 245(k) grants relief from three (3) of those bars: sections 245(c)(2), (c)(7) and (c)(8). Section 245(k), however, does not provide an exemption from any other basis of ineligibility, such as entry without inspection or any ground of inadmissibility.

Section 245(k) of the Act: Exemptions to the 245(c)(2), (c)(7) and (c)(8) Bars to Adjustment for Certain Employment-Based Adjustment of Status Applicants.

  • (1) General Provisions. Section 245(k) can render the normal bars to adjustment of status found in section 245(c)(2), (c)(7), and (c)(8) inapplicable to certain employment-based adjustment of status applicants who, since their last lawful admission to the United States have not, for an aggregate period of more than 180 days:
    • (A) failed to maintain, continuously, a lawful status;
    • (B) engaged in unauthorized employment; or
    • (C) otherwise violated the terms and conditions of his or her admission.
  • (2) Applicability. The following classes of employment-based adjustment of status applicants under section 245(a) are eligible for relief under 245(k):
    • (A) An alien who is present in the United States pursuant to a lawful admission and whose adjustment of status application is based on an approved immigrant petition for them as the beneficiary in one of the following classifications:
      • EB-1: aliens of extraordinary ability, outstanding professors and researchers, and certain multinational managers and executives;
      • EB-2: aliens who are members of the professions holding advanced degrees or aliens of exceptional ability;
      • EB-3: skilled workers, professionals, and other workers; or
      • EB-4: religious workers described in section 101(a)(27)(C) of the Act only.

Other employment-based immigrant classifications and other immigrant classifications are not a basis for consideration under section 245(k).

(B) An eligible derivative of an alien described in (A) may benefit from section 245(k) in his or her own right if he or she has failed to maintain continuously a lawful status, worked without authorization, or otherwise violated the terms and conditions of his or her admission for an aggregate of 180 days or less pursuant to a lawful admission.

Section 245(k) was drafted in 1997– the same legislation that gave us the first section 245(i) "sunset".


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