CASE: Termination of Removal Proceedings with an Approved I-130 Petition / I-485 under the INA 245(i) provision
CLIENT: St. Lucian
LOCATION: New York, NY
Our client is from St. Lucia who came to the U.S. on a B-2 visitors visa in December 2003. Since that time, she never left the United States. Because of her overstay, removal proceedings was initiated against her in September 2010.
In May 1986, our client’s aunt filed an I-130 (fourth preference) petition for her father. This I-130 petition was approved in August 1986. At the time the I-130 Petition was approved, our client was a minor and was a derivative beneficiary. Later, our client’s father filed an I-130 petition on behalf of our client in February 1998. This Petition was approved in November of that year.
Our client contacted us around December of 2010 for consultation and sought legal assistance for her removal proceedings. After the consultation, we determined that she is eligible for adjustment of status under INA 245(i). Our client retained us on January 13, 2011.
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.
Our client was the beneficiary of her father’s petition in February 1998, which is current, but this by itself would not have allowed her to adjust status since this was filed after January 1998 and because she came in 2003, thus not meeting the December 21, 2000 physical presence requirement. However, she was also the beneficiary of a petition filed before January 14, 1998, that of her aunt’s petition for her father. So it was two petitions that saved her case, one for 245i, and the other for adjustment eligibility.
Once retained, our office promptly filed a Motion to Change Venue from Buffalo to New York. This was granted and on April 1, 2011, our office filed a request to join in a Motion to Terminate proceedings with an attached I-485 application and its supporting documents. The DHS counsel in New York agreed to terminate our client’s proceedings. Ultimately, the Immigration Judge granted the Motion to Terminate without prejudice on August 17, 2011.
Once her case was terminated, the USCIS New York scheduled an I-485 interview for our client. Prior to the interview, we thoroughly prepared our client through conference call. On May 1, 2012, our client was interviewed at the New York City USCIS office. Attorney JP Sarmiento accompanied her at the interview as well. Due to the complexity of the case, we made sure the officer was clear about our client’s 245i eligibility. On May 30, 2012, our client’s I-485 application was approved. She finally became a green card holder.
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