INA 245(i) allows some aliens, who are eligible for permanent residence based on a family relationship or job offer to become lawful permanent residents (with green cards) without leaving the United States. Most aliens who have entered the United States without being inspected, overstayed their visa or otherwise violated the immigration laws of the United States in some way, are unable to adjust status to lawful permanent resident without leaving the United States.
However, INA 245(i) states that if an I-130, I-140, I-360 or labor certification was filed with USCIS on behalf of the alien before April 30, 2001, the alien may be able adjust status and receive a green card without leaving the United States. If the visa petition or labor certification was filed between January 14, 1998 and April 30, 2001, the alien must prove that h/she was in the United States on December 21, 2000.
Under INA 245(i), the alien must pay a penalty fee of $1000 along with the standard processing fees for the I-485, biometrics and other processing fees.
It is possible for the alien to use the grandfathering petition file before April 30, 2001 more than once. If an alien applies for 245(i) adjustment and is denied, s/he can apply again. The alien can use the petition until s/he is granted lawful permanent resident status; however, each time the alien applies for adjustment of status, s/he must pay the $1,000 penalty fee.
Additionally, the alien's name does not necessarily need to be listed as a beneficiary on the visa petition approval notice. Derivative beneficiaries of the approved petition can use the grandfathering petition to adjust under INA 245(i). This process can be extremely complex and fact-specific; it is important to consult with an experienced immigration attorney.
INA 245(i) can be used to adjust status during immigration court proceedings as well. Individuals who have been issued a notice to appear in immigration court may be eligible to adjust to lawful permanent resident if they are the beneficiary or derivative beneficiary of a visa petition filed before April 30, 2001.
Contact The Nuñez Firm to discuss the possible benefits of INA 245(i). Consultations are always confidential.
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