ADJUSTMENT OF STATUS (GREEN CARD) UNDER SECTION 245(I) OF THE IMMIGRATION & NATIONALITY ACT:
Section 245 of the Immigration and Nationality Act governs the eligibility requirement for Adjustment of Status (Green Card) in the U.S. It allows an alien to apply for adjustment of status to that of a Lawful Permanent Resident while in the United States if certain conditions are met. Such Alien must;
- Be physically present in the United States.
- Have been inspected and admitted or paroled into the U.S.
- Be eligible for an immigrant visa.
- Have not violated the terms of his or her admission into the U.S.
- Have not engaged in Unlawful employment.
- Have not violated the terms and conditions of his or her Immigration Status.
- Be admissible for permanent residence, and not subject to the grounds of inadmissibility.
- Have maintained lawful nonimmigrant status with some exceptions.
Section 245(i) of the Immigration and Nationality Act allows an otherwise inadmissible Alien who has an available Immigrant visa number to apply for Adjustment of Status (Green Card) upon payment of the penalty fees notwithstanding the fact that he or she entered without inspection (illegal entry), overstayed, or worked without authorization and is not maintaining a Lawful Immigration Status.
An alien adjusting under section 245(i) is referred to as a grandfathered Alien. The term “grandfathered Alien” means an Alien who is the beneficiary of an Immigrant Visa Petition (ie Form I-130, Form I-140, Form I-360, or Form I-526) which was properly filed on or before April 30, 2001, and which was approvable when filed; Or an Application for Permanent labor certification (Form ETA 750) that was properly filed and accepted by the U.S Department of Labor.
The qualifying application must have been nonfrivolous and physically received on or before April 30, 2001, or if mailed, was postmarked on or before April 30, 2001, and accepted for filing. Where such application was approved, withdrawn, denied, or revoked, it will preserve the Alien beneficiary's grandfathered Status.
An asylum application, diversity visa lottery winning letter does not serve to grandfather an Alien for purposes of section 245(i) of the Immigration and Nationality Act.
Aliens who are grandfathered on the basis of a visa Petition or Labor certification filed after January 14, 1998, and on or before April 30, 2001, must demonstrate physical presence in the United States on December 21, 2000.
A grandfathered Alien is not limited to seeking Adjustment of Status solely on the basis of the qualifying Immigrant visa Petition or Permanent labor certification that initially grandfathered the Alien. The grandfathered Alien may seek adjustment of status on any other proper basis for which the Alien is eligible e.g. a later approved I-140, I-130 or wins the diversity visa.
Under Section 245(i), an otherwise illegal Alien may apply for adjustment of status under section 245 of the Act if the alien:
- is physically present in the United States;
- is the beneficiary of a visa petition or Permanent labor certification properly filed on or before April 30, 2001, and determined to be approvable at the time of filing;
- is eligible for an immigrant classification and has an immigrant visa number available.;
- is not inadmissible other than illegal entry, overstay, unauthorized employment & non-maintainence of immigration status.
- Properly files Form I-485, Application to Register Permanent Residence;
- Properly files Supplement A to Form I-485;
- Pays the penalty fees required.