Who is Not Protected under INA Section 245(i)?

One important thing to note is that the benefits provided under Section 245(i) are limited. To obtain a Green Card, an alien still needs:  1) to receive an approved immigration petition from the USCIS; and 2) to meet the general requirements for adjustment of status. Section 245(i) itself has no effect on whether a labor certification application or an immigration petition will be approved. Moreover, Section 245(i) only lifts three bars – specifically the bars to aliens who entered the U.S. without inspection, overstayed, or worked without authorization – in the adjustment of status application. In other words, the other bars to adjustment of status are still there. Section 245(i) also does not protect an alien from removal proceedings and does not grant other benefits, such as employment authorization or advance parole. If an alien has been ordered to be removed from the U.S., he/she cannot apply for an adjustment of status by using Section 245(i). Also, if an alien is put in a removal proceeding in the future, he/she cannot stop the removal proceeding by using Section 245(i).

Furthermore, Section 245(i) does not grant a waiver to the J-1 holder's two-year home country residency requirement. An alien who is subject to the two-year foreign residency rule still needs to obtain a waiver or fulfill the requirement before applying for adjustment of status.

Additionally, Section 245(i) does not waive the three year/ten year bar. Under the current law, an alien who has been out of status in the United States for more than 180 days would be barred from re-entering the U.S. for at least 3 years; an alien who has been out of status in the U.S. for more than 360 days would be barred from re-entering the U.S. for 10 years. Aliens eligible for benefits under Section 245(i) are still subject to the three year/ten year bars. Thus, it is particularly important that people subject to these restrictions not leave the U.S. at all until they become permanent residents. An alien may remain in the United States to obtain permanent residence through adjustment of status by using Section 245(i) and never trigger these entry restrictions. (Once permanent residency is obtained, these entry bars no longer apply.)

For more detailed information about Section 245(i), please click on one of the following relevant links: