CASE: Adjustment of Status / 245(i)
CLIENT: Filipina
LOCATION: Anchorage, Alaska
Our Filipina client came to the U.S. as a crewman in 2002. Her last entry to the United States on a crewman’s landing permit was in November 2002. She has remained in the United States, and she currently resides in Alaska.
Our client contacted us around June of 2014 for consultation and sought legal assistance for her adjustment of status. After consultation, we determined that she is eligible for adjustment of status under INA 245(i) with the approved I-130 petition which was filed by her current U.S. citizen husband. Our client retained us on June 25, 2014.
Prior to retaining our firm, our client was a derivative beneficiary of an I-140 petition for her mother. When the I-140 was filed, our client was only 13 years old which made her a derivative beneficiary. Accordingly, she could be a beneficiary under the INA Section 245(i).
Section 245(i) of the INA allows certain foreign nationals to become permanent residents of the United States despite entering without inspection (EWI), overstaying, and entering on a C1/D crewman / seaman among others. 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 or if they entered on a C1/D (crewman / seaman), 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 and made amendments. 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 July 11, 2014, our office filed her I-485 adjustment of status applications under the 245(i) category for our client with the approved I-130 petition. However, the USCIS denied our client’s application on August 15, 2014 and claimed that our client was restricted from adjustment of status by virtue of INA Section 245(a) and (c). They were wrong and the denial notice did not mention the fact that our client was ineligible for 245(i). Our client was eligible.
Our office immediately filed a Motion to Reopen (Form I-290B) on August 26, 2014 to the USCIS. In our brief in support, our office argued that our client is the beneficiary of an approved I-140 petition filed before January 14, 1998, by virtue of the I-140 filed for her mother in 1989 including her as a derivative when she was only 13 years old. The Bach memorandum specifies that even if she is aged out, our client is still considered a beneficiary for purposes of adjudication under INA section 245(i). We also argued that since the petition was filed before January 14, 1998 that our client does not need to prove physical presence in the United States on December 21, 2000. Eventually, the USCIS approved our client’s I-485 adjustment of status application on December 3, 2014. After a long wait, our client is finally a green card holder.