Below are some detailed examples of how the provisions under INA Section 245(i) can be applied to real-life scenarios:
Example 1: Mr. Wang illegally entered the United States in 1998 and was physically present in the U.S. on Dec. 21, 2000. Now, a restaurant wants to file a labor certification application for Mr. Wang as a Chinese cook. If the application is filed on or before April 30, 2001 and the application is approvable at the time of filing, Mr. Wang will be eligible to take advantage of 245(i) to apply for adjustment of status in the future. However, if Mr. Wang is caught by USCIS (the agency formerly known as INS) and is ordered to be removed from the U.S. while he is waiting for his immigration petition, 245(i) will not prevent him from being removed.
Example 2: Ms. Chen entered the U.S. without inspection in 1998. She married a U.S. citizen in July 1999 and was physically present in the U.S. on Dec. 21, 2000. Ms. Chen is now able to adjust status in the U.S. if her husband files an immigration petition for her on or before April 30, 2001. Unlike Example 7 below, although her adjustment would be based on an immigrant petition by a U.S. citizen spouse, she still needs to meet the requirements of 245(i), because she entered the U.S. without inspection.
Example 3: Mr. Zhou came to the U.S. on a J-1 visa and is subject to the two year foreign residency rule. He was physically present in the U.S. on Dec. 21, 2000 and an immigration petition has been filed before April 30, 2001 for the benefit of Mr. Zhou. He still needs a J-1 waiver or to fulfill the two year foreign residency requirement to be eligible to adjust to permanent residency.
Example 4: Mr. Li is a U.S. permanent resident. In 1998, Mr. Li married Ms. Xu, who was in B-1 status in the U.S. Ms. Xu's B-1 expired after the marriage. Ms. Xu was physically present in the U.S. on Dec 21, 2000. If Mr. Li files an immigration petition for Ms. Xu on or before April 30, 2001, Ms. Xu will be able to adjust status when visa numbers are available in her category.
Example 5: Ms. Lin entered the U.S. as a B-1 visitor in July 1999. Her B-1 status expired in October 1999 and she did not file any extension or change of status application. She is out of status and she was physically present in the U.S. on Dec. 21, 2000. A computer company wants to file a labor certification application for Ms. Lin and offers Ms. Lin a prospective position. If the labor certification is filed on or before April 30, 2001, she will be eligible to take advantage of 245(i) and apply for adjustment of status when the immigration petition is approved and visa numbers for her category are available. However 245(i) does not grant Ms. Lin employment authorization until she applies for adjustment of status.
Example 6: Tom is a Chinese citizen and he came to the U.S. in 1997 as an F-1 student. After graduation, Tom got a job and his employer secured H-1B1 status for him. The employer subsequently filed a labor certification application on Tom’s behalf in May 2000. Tom was physically present in the U.S. on Dec. 21, 2000. The labor certification for his H-1B1 was approvable at the time of filing. Later, Tom falls out of H-1B1 status. If in the future another company wishes to hire Tom and files a labor certification and immigration petition for him, Tom will be able to apply for adjustment of status under 245(i).
Example 7: Ms. Jiang entered the U.S. in June 1999 with a B-2 visa and her status expired in November 1999. In May 2000, Ms. Jiang got married to Mr. Lee, who is a U.S. citizen. In this case, Mr. Lee may file an immigration petition for Ms. Jiang and Ms. Jiang may apply for adjustment of status at the same time. As an immediate relative of a U.S. citizen, Ms. Jiang is allowed to adjust to permanent residency. She does not need to cite 245(i) or pay the $1,000 fine.
Example 8: Mr. Li is 21 years old now and has had his adjustment of status pending since January 14, 2000 under FB-2A (His father is a permanent resident of the US.). Other than his pending I-485, he does not have nonimmigrant status. On October 15, he reached the age of twenty-one. Therefore he has AGED OUT and his adjustment of status based on FB-2A will not be approved because he is no longer an unmarried child under 21 years old of a permanent resident of the US. Mr. Li was present in the US on December 21, 2000. Mr. Li may take advantage of the 245(i) and remain in the US to wait for his immigration quota based on FB-2B.
(Updated 10/17/2012 by AD)
For more information about Section 245(i), please click on one of the following links below: