Significance of Section 245(i) of the INA.

By: Dennis E. Chua, Esq.

Under the present state of the law, a person who is no longer in lawful nonimmigrant status will not be allowed to file for an application for adjustment of status here in the United States even if an immigrant petition has been approved for that person and his priority date is already current. There are however some exceptions to this general rule.

The first exception is if the petition was filed by a US citizen spouse, child or parent and that parent is petitioning for a child below 21 years old.
The next exception is if the applicant is applying for adjustment based on an employment based petition filed within 180 days from the date the applicant fell out of status.

The last exception is if the person is covered by Section 245(i) of the Immigration and Nationality Act. Section 245(i) of the Immigration and Nationality Act (INA) allows persons who are the beneficiaries of immigrant visa petitions or labor certification applications filed on or before January 14, 1998, to file for adjustment of status in the U.S. despite having fallen out of status or having entered without inspection. A limited extension of Section 245(i) in 2000 covered beneficiaries of immigrant visa petitions or labor certification applications filed on or before April 30, 2001. However these beneficiaries should have been physically present in the United States on or before December 21, 2000 to qualify for 245(i).

The following illustrations would best explain one's eligibility under 245(i).

1. Reynaldo entered the United States as a tourist in April 2008. Reynaldo was the beneficiary of an immigrant petition filed by his US citizen father on September 1, 1995. Reynaldo decided not to go back to his home country when he entered in 2008 so he could spend more time with his parents. Reynaldo's priority date will be current in July 1 2010. Can Reynaldo adjust his status in the US? Yes, Reynaldo can adjust his status since is the beneficiary of an approved petition filed on or before January 14, 1998.

2. Victoria entered the United States as a tourist on May 5, 2006. No immigration petitions have been filed for Victoria. Victoria was offered to work for a care home in Los Angeles. The care home owner also offered to sponsor her for green card. The employer filed a labor certification application with the Department of Labor which was eventually certified. The immigrant petition filed with the US Citizenship and Immigration Services was likewise approved. When Victoria's priority date becomes current, can she apply for adjustment of status? Victoria cannot file for adjustment of status even if his labor certification application and immigrant petition have been approved as she is not covered by Section 245(i).

3. Manuel is a seaman who was petitioned by his father on December 5, 1997. His father however died a year after the petition was filed. On February 14, 2008, Manuel was on board a cargo ship which was passing through San Francisco. His ship docked at the Port of San Francisco and Manuel and the other crew members were given shore leave. Manuel called up his relatives in San Francisco who picked him up at the port. After being convinced by his relatives, Manuel decided not to return to his ship and to just stay in the US. After a year Manuel met Kritika, a US citizen. The two later had an amorous relationship and eventually got married. Manuel can adjust his status through a visa petition filed by his wife because he is covered by 245(i). Had Manuel not been covered by 245(i), he could not adjust his status even though he is married to a US citizen because he entered the country as a crewman.

Section 245(i) is one of the more significant legislations passed and the law has allowed a substantial number of individuals to get their permanent residence status. People who are covered by 245(i) must take advantage of this law so that they may be able to legalize their stay in the U.S.

Atty. Dennis E. Chua is a partner in The Law Firm of Chua Tinsay and Vega (CTV) - a full service law firm with offices in San Francisco, San Diego and Manila. The information presented in this article is for general information only and is not, nor intended to be, formal legal advice nor the formation of an attorney-client relationship. The CTV attorneys will be holding regular free legal clinics at the Max's Restaurant in Vallejo, California. Call or e-mail CTV for an in-person or phone consultation to discuss your particular situation and/or how their services may be retained at (415) 495-8088; (619) 955-6277; Dchua@ctvattys.com