Adjustment Of Status Using 245(i) Exception, Spouses And Children
New York Immigration Lawyer Alena Shautsova helps immigrants to determine their potential reliefs from removal and eligibility for various benefits under the existing and ever-changing Immigration laws. Recently, as a part of Immigration reform discussions, practitioner and public started again discussing 245(i) exception to the adjustment of status rules or a provision in the law that allows some individuals who otherwise would not qualify for a green card in the United States to successfully apply for it.
In short, the 245(i) provision allows certain persons who were sponsored by their employers or family members long time ago to file for adjustment of status now, if certain conditions are met. It helps only those who entered the US without inspection , worked without authorization or overstayed their visas, and (1) an approvable immigrant petition or labor certification was filed for him/her on or before January 14, 1998, or (2) it was filed after this date but before April 30, 2001 and on December 21, 2000 the person was physically present in the United States. This provision also helps crewmen, persons who entered on a visa waiver.
While the principal’s or main beneficiary’s eligibility for 245(i) is usually clear, it may be more difficult to determine if children and/or spouses may benefit form this provision as well. For example, may a grown up child who is now getting married to benefit form the old petition that was filed for his/her parent? Or is it possible for a spouse of 245(i) beneficiary to acquire status as well if the spouse also entered the US without inspection? Let’s see what the regulations say.
All children and spouses can be divided into two categories: those with whom the qualifying legal relationship existed before April 30, 2001, and “after acquired” or those with whom such a relationship appeared later. The relevant date here is April 30, 2001: if the marriage to the principal applicant occurred prior to April 30, 2001, then the spouse will remain eligible to adjust under 245(i) even if he/she divorces the principal or will file for adjustment based on a separate from the principal petition. The same is true for the children: if a child was born prior to April 30, 2001, and later aged out, he/she will still be able to adjust using 245(i) provision.
But if a spouse or a child are after acquired: marriage took place after April 30, 2001 or a child was born after this date, then they will be able to use 245(i) provision only when they are filing for adjustment of status with the main principal as derivatives and are accompanying or following to join the main applicant. It means, for example, that if principal is adjusting in a category that does not allow for derivatives, then after acquired spouse or children will not be able to benefit from the principal’s 245(i).
Note: if the principal parent passed away, children may rely on 245(l) to use 245(i) benefit. For example, a grandparent filed I 130 petition for the father. I-130 has never been used by the father to enter the US; the father passed away. The derivative children may rely on the unused I 130 when filing following to join under the Western Hemisphere Program, even though the father-main beneficiary passed away.
One should consult with an attorney in each case when he/she believes there may be a possibility of 245(i) exception.
In the recent days, there are talks about reviving 245(i) by moving the deadlines which will allow hundreds of thousands of people to file for adjustment of status. No action has been taken yet, but we remain hopeful that Biden administration will make a push for the reform, and positive changes.
If you need help with your Immigration case, please call our office 917 885 2261 to book a confidential consultation.
Follow me on: