CASE: Adjustment of Status / 245(i)
CLIENT: Filipina
LOCATION: Virginia
Our Filipina client came to the U.S. on an H-1B visa in February 2000. After August 2003, her H-1B visa expired and she overstayed her status. Currently, she resides in Virginia.
Our client contacted us around October of 2010 for consultation and sought legal assistance for her and her minor son’s adjustment of status. After consultation, we determined that she is eligible for adjustment of status under INA 245(i) and the priority date for her case was current for November 2010. Our client retained us on October 14, 2010.
Prior to retaining our firm, her sister filed an I-130 petition for her back in 1990. As some of you know, priority dates for Philippine nationals under the family-based immigration category are more retrogressed than other countries. The I-130 petition was approved by the INS in 1990. However, she could not apply for her green card until her priority date became current. Therefore, she had to wait for more than 20 years in order to even apply for her green card.
Section 245(i) of the INA allows certain foreign nationals to become permanent residents of the United States despite entering without inspection (EWI) or overstaying (if beneficiary of petitions filed not by an immediate relative). 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.
On November 10, 2010, our office filed their I-485 adjustment of status applications under the 245(i) category for our client and her son. However, the priority date for the F4 category Philippines backlogged. She got work permits though throughout the duration of the 485’s pendency. Our client had to wait until the priority date becomes current. In February 2014, her priority date became current. Eventually, our client and her son’s adjustment application were approved by the USCIS on February 6. 2014. After a long wait, our client is finally a green card holder.