Adjustment of Status Under INA 245

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Alexander Carl, Esq., Associate Attorney, Law Offices of Ally Bolour, APC

There are four general requirements that need to be met in order to adjust status under 245(a) of the INA.  These four requirements are: 1) Immigrant Visa Available; 2) Beneficiary is physically present in the U.S.; 3) Beneficiary was “inspected, admitted or paroled”, and 4) Applicant always remained “in status.”

If you are physically present in the U.S. and there is an immigrant visa available at the time you file your application to adjust status yet you entered the U.S. without inspection, admission or parole and/or failed to always remain in “status” you do not meet the general requirements to adjust status under 245(a).  By using 245(i), however, you may still qualify to adjust status under 245(a).

To meet the requirements of 245(i) you must have had a visa petition on file before April 30, 2001.  As applied to the family context, this means that on or before April 30 2001 a family member must have filed an I-130 with you as the Beneficiary.  This I-130 must be approvable when filed. If you meet these two general requirements then your illegal entry and/or overstay of your visa do not preclude you from adjusting status under 245(a).

As an example let’s use a hypothetical situation.  Alex seeks to adjust status in 2017 through his 21 year old son who is a USC.  Alex entered the U.S. in 2000 without being inspected, admitted or paroled and has stayed in the U.S. since his arrival in 2000.  Alex was not inspected, admitted or paroled nor does he have status in the U.S., therefore, at first glance he does not meet the requirements to Adjust status under 245(a).

In the hypothetical, Alex’s brother, a LPR,  filed an I-130 with Alex as Beneficiary in the year 2000 – sometime after Alex entered the U.S.   Let’s assume this I-130 was approvable when filed because it met all regulations and laws.  17 years later, Alex’s son, a single 21 year old USC, seeks to petition for his father – Alex.

Remember Alex  was never inspected, admitted or paroled into the U.S., therefore, he does not meet the requirements to adjust status under 245(a). However, Alex was the beneficiary of an I-130 that was filed in 2000.  This I-130 was approvable when filed.  Alex can therefore use 245(i) to qualify for adjustment of status under 245(a).

If Alex is able to demonstrate that he meets the requirements under 245(i), which in this case he likely will due to the hypothetical facts above as applied to the requirements of 245(i), then his unlawful entry into the U.S. in 2000, and his lack of status since his entry, will not bar him from adjusting his status under 245(a).

Said differently, Alex will use 245(i) to “cure” his unlawful entry into the U.S. in 2000.  He can also use 245(i) to cure issues concerning his lack of status since his entry in 2000.  By using 245(i), Alex will therefore be able to adjust status under 245(a).

In conclusion, 245(i) can prove useful to certain foreign nationals who seek to adjust status under 245(a).

Every case is unique and this article is not intended to be legal advice, and should not be taken as such.  If you believe you or your spouse, child or parent may be eligible for benefits under immigration law, you should consult an attorney about the specific of your case.  Contact our law offices for a consultation on the specifics of your case by phone at 323-857-0034 or at alex@americanvisas.net.

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