A: The new 245(i) Amendment allows some aliens who are out of status, entered the U.S. without inspection, or violated the terms of their non-immigrant visa to apply for adjustment of status after their immigration petitions are approved.
A: To be eligible to take advantage of 245(i), the alien must meet the following requirements:
A: 245(i) will allow the alien to apply for adjustment of status even if the alien entered the U.S. without inspection, was out of status, or violated the terms of his of her non-immigrant status. The alien still needs to meet other requirements for adjustment of status to obtain a green card.
A: 245(i) does not protect an alien from removal proceeding and does not grant other benefits such as employment authorization or advance parole.
A: No. If a person has been ordered to be removed from the U.S., he or she cannot use 245(i) to lift this bar to adjustment of status. Also, if the alien is ordered to be removed in the future, the 245(i) does not protect the alien from removal.
A: No. The 245(i) does not grant a waiver to the J-1 holder's two year residency requirement. An alien who is subject to the two-year home residency rule still needs to obtain a waiver or fulfill the requirement before applying for adjustment of status.
A: For those who are in status and who were physically present in the U.S. on Dec. 21, 2000, if they are beneficiaries of immigration petitions or labor certification applications filed on or before April 30, 2001, they will be eligible to take advantage of 245(i) even if they fall out of status in the future.
A: Before the enactment of 245(i), aliens who are out of status needed to return to their home countries and complete the process for an immigrant visa at the U.S. consulate. However, if aliens found to be out of status in the U.S. for more than 180 days would be barred from reentering the U.S. for at least 3 years; aliens found to be out of status in the U.S. for more than 360 days would be barred from reentering the U.S. for at least 10 years. Under Section 245(i), an eligible alien can remain in the U.S. to obtain permanent residence through adjustment of status, and thus never trigger these entry bars. (Once permanent residence is obtained, these entry bars no longer apply.) Thus, it is particularly important that people subject to the bars not leave the U.S. at all until they become permanent residents since the 245(i) does not lift the three year/ten year bars.
A: The Section 245(i) penalty fee is $1,000, and is in addition to any other filing fees that the USCIS charges. This fee does not have to be paid when relatives or employers submit the visa petition or labor certification on or before April 30, 2001. Rather, it is usually due later, when the alien applies for adjustment of status to become a permanent resident. Thus, the $1,000 fee needs to be paid at the time of filing the Form I-485A, which is submitted along with the standard application for adjustment of status (Form I-485).
Q: I came into the US legally with a B-1 visa and am out of status now. I just married a US citizen. Moreover, I was present in the US on December 21, 2000. May I use 245(i) to apply for a Green Card?
A: Yes, you may, but you do not need to. Even without 245(i), the fact that you are out of status does not prevent you from applying for adjustment of status. If you use 245(i), you have to pay a $1,000 penalty. If you do not 245(i), you do not need to pay the penalty. For the purposes of getting a Green Card, there is no difference whether you use 245(i) or not.
(Updated 10/17/2012 by AD)
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