CASE: Employment Based Adjustment of Status (Derivative Applicant) / 245(i)
CLIENT: Filipino
LOCATION: Washington
Our Filipino client came to the U.S. in April 1993 on a valid B-2 visitor’s visa when he was a minor. He has remained in the United States since then. In April 2001, his U.S. citizen brother filed an I-130 petition for him. Thereafter, he married his current wife in April 2011. His wife got an approved EB-2 I-140 petition and she later filed her I-485 adjustment of status.
Our client contacted us around May 2015 for consultation and sought legal assistance for his adjustment of status application. He was not sure whether he could be a derivative applicant of the adjustment of status based on his wife’s I-140 approval since he overstayed his status. Nonetheless, after consultation, we determined that he is eligible for adjustment of status under INA 245(i). Our client retained us on May 26, 2015.
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.
As mentioned above, our client’s U.S. citizen brother filed an I-130 petition for him back in April 2001. Therefore, he was a beneficiary of an immigrant petition filed after January 15, 1998 and before April 30, 2001 and that I-130 petition was approvable when it was filed. Moreover, he was physically present in the United States on December 21, 2000.
On July 2, 2015, our office filed his I-485 adjustment of status application under 245(i). Everything went smoothly and the receipt notices and fingerprint appointment all came on time. Eventually, on October 19, 2015, without any requests for evidence, our client’s I-485 adjustment of status application was approved.