INA 245(i) of the Legal Immigration Family Equity (LIFE) Act

 
Section 245(i) of the Immigration and Nationality Act (INA) of the Legal Immigration Family Equity (LIFE) Act enables certain individuals who are present in the United States who normally would not qualify for adjustment of status to obtain permanent residence regardless of:
  • How they entered the United States
  • Working in the U.S. without authorization
  • Failure to maintain lawful status
  • To qualify the applicant must be the beneficiary of a labor certification application (Form ETA 750) or immigrant visa petition (I-130 or I-140) filed on or before April 30, 2001. An additional $1,000 fee may be required along with additional documentation to apply for adjustment of status using the provisions of Section 245(i).

Eligibility


You may be eligible to receive a green card through Section 245(i) if you:
  • Are the beneficiary of a qualified immigrant petition (Form I-130 or I-140) or application for labor certification (Form ETA-750) filed on or before April 30, 2001
  • Were physically present in the United States on December 21, 2000 (physical presence not required for petitions filed before January 15, 1998)
  • Have a visa immediately available to you
  • Are admissible to the United States
In addition, the qualifying immigrant visa petition or the qualifying application for labor certification must have been “properly filed” and “approvable” when filed. Depending on the circumstances, a spouse or child of a grandfathered individual may also be a grandfathered or may be eligible to adjust status as a dependent.

Qualifying Petition or Labor Certification


Labor certifications or visa petitions filed to preserve eligibility under INA 245(i) must have been properly filed and approvable when filed in order to qualify. At a minimum the filing must have been timely (filed by April 30, 2001) and met all applicable substantive requirements (“approvable when filed”). Deficiencies such as lack of fee or original signature disqualify the submissions.

Petition or Labor Certification that was Withdrawn, Denied or Revoked


If the petition or labor certification was withdrawn, denied or revoked you may still be grandfathered, depending on the reasons for the withdrawal, denial or revocation. It depends on whether a visa petition or labor certification was "approvable when filed."

The Petitioner Died or the Employer was Unable to Maintain the Petition


You may still be grandfathered if the petitioner dies; family member who filed the petition divorces you; employer who filed the labor certification or Form I-140 goes out of business; petitioner or the employer chooses to withdraw the petition or labor certification; or petitioner or employer was unable to maintain the petition or labor certification application. It depends on the reasons for the final action. In addition, the changed circumstances must relate to factors beyond your control rather than the merits of the petition at the time of filing. As long as the petition or labor certification application was "approvable when filed," then you should remain grandfathered.

Adjustment of Status under INA 245(i)


Many persons mistakenly believe that INA 245(i) is the same as amnesty (i.e., forgiveness of unlawful presence). On the contrary, unlawful presence continues to accrue until an application for adjustment of status is filed, which stops the accrual of unlawful presence. Section 245(i) does not protect an individual from deportation nor does having a grandfathered petition or labor certification put a person in a “period of authorized stay” (free from removal proceedings).

For example, an individual illegally in the U.S. accrues unlawful presence until he or she properly files an application for adjustment of status. An individual who accrued 180 days or more of unlawful presence in the United States, and then departs the United States (even if the person was granted advance parole), will trigger a 3 or 10 year bar to adjustment of status under INA 212(a)(9)(B). This bar is not usually forgiven under Section 245(i).

There are many other grounds of inadmissibility that apply even though you may have an application for adjustment of status under Section 245(i). Therefore, an individual who continues to work without authorization may remain eligible to adjust status when permanent residence is approved and an immigrant visa is available, but may be removed from the United States if discovered in the meantime. Furthermore, a U.S. employer who files a labor certification or Form I-140, naming an unauthorized individual as beneficiary, will be subject to sanctions if discovered to be knowingly employing that individual prior to adjustment of status or USCIS granting work authorization. The application for adjustment of status under Section 245(i) does not protect an individual against removal based on an applicable ground of inadmissibility by Immigration and Customs Enforcement (ICE).

Background of INA 245(i)


In 1994, Congress enacted Section 245(i) of the INA, permitting certain individuals who were otherwise ineligible for adjustment of status in the United States to pay a penalty fee for the convenience of adjusting status without leaving the United States. Prior to enactment of the LIFE Act Amendments, the window for preserving adjustment eligibility under Section 245(i) ended or cut off on January 14, 1998, after which only "grandfathered" individuals (beneficiaries of labor certifications or immigrant visa petitions filed on or before that date) were eligible to adjust status under Section 245(i) . The cut-off date of Section 245(i) changed several times; however, then President Clinton signed into law a provision that changed the nature of Section 245(i) to “grandfather” those individuals in the United States for whom an immigrant visa or application for labor certification was filed on or before January 14, 1998.

On December 21, 2000, the LIFE Act Amendments temporarily restored eligibility under Section 245(i) by replacing the previous cut-off date of January 14, 1998, with a new date, April 30, 2001. Accordingly, a beneficiary of a labor certification application or immigrant visa petition filed on or before April 30, 2001, preserves an individual’s eligibility to adjust status under Section 245(i) if certain conditions are met. The LIFE Act added a significant requirement to Section 245(i). If the qualifying petition or labor certification was filed after the previous cut-off date of January 14, 1998, the individual must have been physically present in the United States on the date of enactment (December 21, 2000) in order to qualify for Section 245(i) benefits under LIFE.