CASE: Adjustment of Status / 245(i)
CLIENT: Chinese
LOCATION: Columbus, Ohio

Section 245(i) of the INA allows certain foreign nationals to become permanent residents of the United States despite entering without inspection (EWI). Immigrants are barred from adjusting their status if they entered the United States without first being inspected and admitted by a Customs and Border Patrol officer and if they have either failed to maintain lawful status or been unlawfully employed in the country, with certain exceptions. Section 245(i) was first added to law in 1994 to allow certain people who otherwise would not be eligible to adjust their status to be able to do so upon payment of a $1,000 fine.

Four years later, on January 14, 1998, Congress phased Section 245(i) out of law. Immigrants and their families who had already begun the process of changing their status under Section 245(i) by January 14, 1998 were grandfathered into the section’s benefits. However, this left thousands of otherwise qualified persons who had not begun the process unable to adjust status in the United States. They could not return to their countries to begin the legal process of obtaining their permanent residency in the United States also without being subject to either a three- or a 10-year bar upon returning to the United States.

On December 21, 2000, Congress extended the qualifying date for Section 245(i) benefits to April 30, 2001. This law allowed immigrants who had labor certifications or visa petitions filed on their behalf between 1998 and April 30, 2001, to qualify for adjustment of status. Those who were beneficiaries of petitions filed prior to January 14, 1998 could still adjust despite an EWI record, and those people do not have to meet the December 2000 physical presence requirement.

Our clients came from China and had approved I-130 petitions (F-4 category) filed by our client’s U.S. Citizen brother in 1987.  Now that their son (over 21 years old) is a U.S. Citizen, we also filed an I-130 petitioned by their son on their behalf.  However, they have an EWI (Entry without Inspection and Admission) record in 2008. Since our clients are beneficiaries of an approved I-130 F4 petition filed in 1987, they can still adjust status through INA § 245(i) despite their entry issue. Also, since the F-4 petition was filed before January 14, 1998, physical presence in December 2000 was not required.

Our office was retained on May 23, 2011. We prepared and filed the Adjustment of Status Application with Form I-485 Supplement A on July 9, 2011.  Everything went smoothly and the receipt notices, the fingerprint appointment, and the work permit all came on time. There was no Request for Evidence.  Prior to the interview, we thoroughly prepared our clients with our Chinese speaking staff.   On October 11, 2011, our client was interviewed at the Columbus, Ohio USCIS office.  We accompanied them at the interview as well. Prior to the interview, we submitted a brief pertaining to the INA § 245(i) issue, including documents evidencing the fact that an I-130 was filed in 1987. The petition and green card applications were approved on the same day. 

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Our client retained us to petition his parents in China. He was born and raised in China, but was recently naturalized in the United States. He consulted about the timeline and process of bringing his parents over here, and we explained that these types of cases are faster than sibling petitions or those where a parent petitions a son or daughter over 21.

A petition such as the above-mentioned is an example of an immediate relative petition. The main benefit of immediate relative petitions is that visa numbers are always available and not subject to a quota. You don’t have to check the visa bulletin every month to see if the U.S. Consul or the CIS can now process your case. It is already in process. The types of immediate relative petitions are as follows:

• US Citizen spousal petition
• US Citizen parent petitioning a child under 21
• US Citizen son or daughter petitioning a parent (such as this case)

On November 17, 2010, our firm filed the I-130 Petition to the CIS. There were no Requests for Evidence throughout the pendency of the petition. On April 1, 2011, the I-130 Petition was approved. We now move to the immigrant visa processing phase of trying to get his parents over to the United States.

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