What Is Section 245(i)?
Section 245(i) is a provision of immigration law that provides an alternative path to adjust status for individuals otherwise barred from doing so.
Normally, to adjust status in the United States, you must have entered the country lawfully (with inspection and admission or parole) and maintained lawful status. Section 245(i) waives these requirements for qualifying individuals.
The provision has been modified over the years. Currently, new beneficiaries cannot qualify for 245(i), but those previously protected retain benefits.
Why Does Section 245(i) Matter?
For individuals who entered without inspection, adjustment of status is typically unavailable. They would need to leave the U.S. and process through a consulate, often triggering unlawful presence bars of 3 or 10 years.
Section 245(i) allows these individuals to remain in the United States and complete the adjustment process without leaving, avoiding bar triggers and prolonged family separation.
This provision has enabled hundreds of thousands of individuals to obtain legal status and green cards.
Who Is Eligible for Section 245(i)?
Section 245(i) eligibility has two main categories based on when the qualifying petition was filed:
Pre-January 14, 1998 petitions: Beneficiaries of qualifying immigrant petitions or labor certifications filed on or before January 14, 1998, are eligible regardless of physical presence on specific dates.
January 14, 1998 through April 30, 2001 petitions: Beneficiaries of qualifying petitions filed in this period must also have been physically present in the United States on December 21, 2000.
After April 30, 2001: No new beneficiaries can qualify. The provision was not further extended.
What Counts as a Qualifying Petition?
Qualifying petitions include:
Family-based petitions (Form I-130): Filed by U.S. citizens or permanent residents for family members.
Employment-based petitions: Including approved I-140 petitions.
Labor certifications (Form ETA-750): Filed with the Department of Labor as part of employment-based green card process.
Other qualifying applications: Certain visa petitions and immigration applications.
The petition must have been properly filed and approvable when filed, even if later withdrawn or denied for reasons unrelated to merit.
What Is the Grandfathering Concept?
Grandfathering extends 245(i) protection to those who had qualifying petitions filed on their behalf by the deadlines.
Grandfathering provides: The ability to adjust status under 245(i) even if the original qualifying petition is no longer viable (withdrawn, died, divorced, etc.).
Grandfathered individuals can: Benefit from 245(i) based on the original petition filing date. Subsequent petitions can be used for adjustment as long as 245(i) grandfathering applies.
Derivatives: Family members derivative to grandfathered principal may also be grandfathered in certain circumstances.
How Does Family Member Grandfathering Work?
Spouse of grandfathered principal: Spouse acquired at time of original petition filing may be grandfathered.
Children of grandfathered principal: Children born before qualifying petition filing (or under age 21 at that time) may be grandfathered.
After-acquired family members: Generally cannot use the principal's grandfathering.
This is complex area. Consult with an attorney about whether family members have independent 245(i) eligibility.
How Do You Use Section 245(i)?
To use Section 245(i) for adjustment of status:
Step 1: Confirm grandfathering: Document that you qualify based on a timely-filed petition or labor certification.
Step 2: Have current basis for adjustment: You need a current visa number and approved or approvable petition.
Step 3: File Form I-485: Standard adjustment application with additional documentation.
Step 4: File Form I-485 Supplement A: Specific form for 245(i) adjustments.
Step 5: Pay penalty fee: Include $1,000 penalty fee in addition to normal adjustment fees.
What Documents Establish 245(i) Eligibility?
Original petition evidence: Receipt notices, approval notices, or other documentation of the qualifying petition filing.
Filing date verification: Proof the petition was filed by the applicable deadline (January 14, 1998 or April 30, 2001).
Physical presence evidence: For petitions filed after January 14, 1998, evidence of physical presence in the U.S. on December 21, 2000.
Continuity of identity: Proof you are the same person named in the original petition.
What Is the $1,000 Penalty Fee?
Section 245(i) requires a $1,000 penalty fee in addition to standard adjustment of status fees.
Who must pay: The principal adjustment applicant and each derivative family member benefiting from 245(i).
Who is exempt:
Children under 17
Certain abused spouses and children
Certain national interest waivers
Total cost: Standard I-485 fees ($1,440) plus $1,000 penalty plus biometrics and other applicable fees.
Can the Penalty Fee Be Waived?
The $1,000 penalty fee generally cannot be waived, unlike other USCIS fees that may qualify for fee waivers based on inability to pay.
Exemptions are statutory (built into the law) rather than discretionary waivers.
Budget appropriately for the penalty fee when planning 245(i) adjustments.
Common 245(i) Scenarios
Scenario 1: Individual whose parent filed I-130 for them in 1999, but the parent died before priority date became current. The individual may still adjust through 245(i) if a new qualifying basis exists.
Scenario 2: Individual whose employer filed labor certification in 2000 but the job offer no longer exists. The individual may be grandfathered for future 245(i) adjustment through a different petition.
Scenario 3: Individual whose spouse filed I-130 in 1997 but the couple divorced. The individual may be grandfathered for 245(i) benefits on future petitions.
What About Marriage Fraud Concerns?
245(i) applicants must still satisfy substantive immigration requirements:
Genuine relationships: Marriage-based cases require bona fide relationships.
Fraud findings: Marriage fraud findings from prior petitions can affect 245(i) eligibility.
Sham petitions: If the original 245(i) petition was fraudulent, grandfathering may be invalid.
Be prepared to document the genuineness of any relationships, even historical ones.
245(i) and Inadmissibility Issues
Section 245(i) does not waive inadmissibility grounds:
What 245(i) does: Allows adjustment despite unlawful entry or failure to maintain status.
What 245(i) does not do: Waive criminal grounds, fraud, health issues, or other inadmissibility under INA 212(a).
Separate waivers may be needed for various inadmissibility grounds.
What About Unlawful Presence?
Section 245(i) allows adjustment without triggering unlawful presence bars because the applicant does not leave the United States.
However, significant unlawful presence may affect discretionary factors. USCIS evaluates the totality of circumstances in deciding adjustment.
Document mitigating factors (family ties, long residence, contributions, etc.) to support favorable discretion.
Current Status of Section 245(i)
Section 245(i) has not been extended for new beneficiaries since April 30, 2001. Legislative efforts to extend the provision have not succeeded.
Who is currently affected: Only individuals grandfathered under the prior provisions.
Future legislation: Potential legislation could extend or modify 245(i), but none is currently imminent.
Administrative policy: Current USCIS policies affect how grandfathering is interpreted and applied.
Is 245(i) Still Useful?
Absolutely. Despite no new beneficiaries qualifying, grandfathered individuals retain valuable rights:
Examples of current use: Grandfathered individuals using new petitions for adjustment, family members of grandfathered individuals, and those previously on hold due to visa unavailability.
Many 245(i)-eligible individuals still have pending or potential cases. Verify grandfathering before concluding you cannot benefit.
