What Does it Mean to be Protected under 245(i)?

Many people ask me about Section 245(i), which is a law that was enacted in 1994, to be precise. At that time it was a penalty that people paid for being illegal in the United States. The law stated, from 1994 to 1998, if you were illegally in the United States and wanted to adjust your status, you could apply for adjustment of status by paying a penalty of $600.00. That penalty was increased in the year 1998 and was raised to $1,000.00. That law extended under Bill Clinton until April 30, 2001. Basically if you’re in the United States illegally and you want to change your status and you are getting a green card any other way aside from an immediate relative, you can’t if you are illegally here or if you have entered the US illegally.

What they did in 1994 was, instead of making you go back home to your consulate, Congress permitted you to go ahead and apply for your green card by paying a penalty of $1,000.00. For illegal individuals who wanted to get a green card through work or individuals who are married to a green card holder but their spouse, for some reason, is not eligible for citizenship, then those people, if they were covered under 245(i), were eligible to adjust status in the United States.

There are other categories as well, if you are not an immediate relative, that would permit you to get a green card pursuant to 245(i). That law ended April 30, 2001. Depending on when your application was filed, if it was a family-based petition or a labor certification petition, and if it was filed before 1998, then all you would have to do was pay the penalty. If it was filed between January 14, 1998 and April 30, 2001, you would have to pay the penalty but also demonstrate that you were physically present in the United States on December 21, 2000.

In addition, now immigration has been very careful to make sure that the application was a bonafide application. In order for it to be a bonafide application, if it’s a family-based petition, they wanted to see if that was a real relationship. It couldn’t be a petition that wasn’t legal under the immigration law. For example, under immigration law, an aunt can’t file for her niece for a green card. If your aunt filed for an I-130 family-based petition for you and you are the niece, you’re not going to be covered under 245(i). If you are in a family-based category that was legal, such as a spouse, parent, or child, then you are going to be covered under 245(i) if it was filed prior to April 30, 2001. In addition, if it’s a family-based petition and it was denied because they didn’t believe the marriage was real, then you are going to run into trouble as to whether or not that was a bona fide application and you may not be covered under 245(i).

You also can use 245(i) if you filed an application through employment prior to April 30, 2001. In fact, when we knew the law was ending in April 2001, people rushed to file applications. Immigration has said that you’re allowed to use that 245(i) filing even if the case was denied, withdrawn, or revoked. Any of those applications might still be viable for you to use now. If immigration doesn’t believe that it was a bonafide job offer, if it was an employment-based context, then they might not agree to approve your case saying that you’re not eligible under 245(i). They are scrutinizing these cases carefully, so you want to make sure that you have evidence that your application that was filed before April 30, 2001 is still viable.

The beauty of 245(i) is, even if you had been sponsored many years ago through employment, marriage, or another family-based case that never went anywhere because the employer decided they didn’t want to continue with the case, or the company shut down, or your relationship ended, if you have that old petition, we call it grandfathering. That petition will allow you to apply for a green card based on a subsequent, new petition if you are eligible for something else. If you re-marry a United States citizen or you have a company now that wants to sponsor you for a green card and it’s a completely new company that sponsored you in 2000, you’re eligible to use that old filing to apply for a new green card and you would pay the penalty of $1,000.00. It’s a good way to legalize your status in the United States if you have no other way to be here because you entered the United States illegally, or you want to get a green card through employment.

245(i) can be complicated. It’s important to also know your family history because if your parents were grandfathered under 245(i) and you were eligible as a child, you were under 21, you still might be covered under 245(i). If you were married to somebody who was covered under 245(i), even if you were divorced, you also would be covered under 245(i). It’s important to go over those questions with an immigration lawyer. Lawyers who ask you a lot of questions about your family, your marital history, they’re not doing it because they are nosey. A lot of times we want to figure out if you’re 245(i) and could get a green card some other way in the future.

If you have questions or if you want to know whether or not you’re covered under 245(i) or you think 245(i) can help you apply for a green card in the future, please contact my office and I’d be happy to go through those questions with you and discover whether or not you’re eligible for a green card now.

Cheryl David is an experienced attorney, practicing immigration law in NYC. Please contact the law office if you have any questions regarding the 245(i) petition or general immigration procedures. We’d be happy to set up a free initial consultation and help in any way we can.