Complete Guide to INA 245(i) for Green Cards

Posted by Frank Gogol

Do you find yourself in the United States, eligible to apply for a green card except for one tiny bit of evidence making you ineligible – such as having worked without authorization? Or have you perhaps overstayed your lawful status in the U.S., and you’re scared to leave as you will be barred from re-entering and seeing your U.S. citizen family again? 

We have good news. Section 245(i) of the Immigration and Nationality Act (INA) could be your way out of the concern and into a green card. In this article, we look at what INA 245(i) is and how to get a green card with INA 245(i)’s help. 

What is the LIFE Act?

The LIFE Act is the Legal Immigration Family Equity (LIFE) Act. The LIFE Act and the LIFE Act Amendments of 2000 work together with INA 245(i) to allow people to apply for a green card, despite being ineligible on specific grounds.

What is INA 245(i)

INA 245(i) is the section in the Immigration and Nationality Act that allows you to still become a lawful permanent resident of the U.S. through an adjustment of status despite factors such as working without authorization or not maintaining lawful status. 

One of the requirements to apply for a green card from within the United States is you must have been “inspected and admitted or paroled.” This basically means you must have entered the U.S. through a port of entry with a valid visa or parole document. If you didn’t, you can’t adjust your status to get a green card. 

You are also barred from applying for a green card through adjustment of status if you overstayed your visa or worked in the U.S. without employment authorization. So, even if you meet all the other eligibility criteria for a green card, you will be barred from applying.

If you find yourself in this scenario, one option is to exit the U.S. and get a green card through consular processing. Unfortunately, this has its own risks, such as re-entry bars that may be triggered (see below). 

This is where INA 245(i) comes in. INA 245(i) makes it possible for people who are generally ineligible or barred from getting a green card due to the factors mentioned above, to adjust their status to permanent resident. 

Who is Eligible for a Green Card through INA 245(i)?

You may be eligible to adjust your status and get a green card under INA 245(i) in the following circumstances:

  • You were physically present in the United States on December 21, 2000
  • A qualified immigration petition (Form I-130 or I-140) or labor certification (Form ETA-750) has been filed for your benefit
  • Your petition was filed between January 15, 1998, and April 30, 2001
  • Your petition was valid and “approvable at filing”, and
  • An immigrant visa must be immediately available to you.

Your petition would be “approvable when filed” if it:

  • Was properly filed – meaning you signed the petition, you submitted the appropriate filing fee, and you filed it before April 30, 2001
  • Had merits (or was “meritorious in fact”) – meaning you qualified for the benefit you applied for at the time you filed the petition, and
  • Was “non-frivolous” – meaning the application was earnest and had a purpose. 

How to Get a Green Card with INA 245(i)

To adjust your status and get a green card with INA 245(i), you must file all the usual documents for adjustment of status, starting with the Form I-485, Application to Register Permanent Residence or Adjust Status.

The standard supporting documents you will have to include with your Form I-485 are:

  • Two passport-style photos
  • A copy of your government-issued identity document with a photograph
  • A copy of your birth certificate
  • A copy of your passport page with a non-immigrant visa (if applicable)
  • A copy of your passport page with the admission (entry) or parole stamp (if applicable)
  • Form I-94 Arrival/Departure Record (if applicable)
  • Form I-944, Declaration of Self-Sufficiency, if applicable
  • Form I-693, Report of Medical Examination and Vaccination Record, and
  • Form I-864, Affidavit of Support.

The filing fee for the Form I-485 is $1,225.

Because you are applying under INA 245(i), you will also have to provide the following additional documents:

  • Supplement A to Form I-485
  • Proof of your qualifying INA 245(i) petition (this can be a copy of the 245(i) petition Receipt Notice, Approval Notice, or the actual 245(i) petition if the petition has a receipt date stamp)
  • If you qualify as a derivative beneficiary of the INA 245(i) petition, proof of your qualifying relationship
  • Proof of your physical presence in the United States on December 21, 2000, if applicable,
  • Proof of your concurrently filed immigrant petition or Form I-797, Notice of Action, for the pending or approved immigrant petition you are using as your basis of adjustment.

Finally, you will have to pay an additional fee of $1000 as a “penalty.”  

INA 245(i) FAQ

In case you still have a few questions, here are answers to some of the most frequently asked questions about INA 245(i).

What kind of benefits does an alien get from 245(i)?

The big benefit you get from INA 245(i) is that it allows you to apply for an adjustment of status to green card even if you are technically disqualified because you:

  • Entered the United States without inspection 
  • Were or are out of status, or 
  • Violated the grounds of your non-immigrant status. 

If you still meet the other requirements to adjust your status, you can get the benefit of a green card despite not being technically eligible! 

Who is not protected by 245(i)?

INA 245(i) does not grant you any other immigration benefits such as advance parole or employment authorization. It also does not protect you from removal proceedings. 

Does 245(i) protect aliens who have been ordered to be removed?

Unfortunately, it doesn’t. If you’ve been ordered to be removed from the United States, you can’t use 245(i) to lift this bar and adjust your status. Also, if you are ordered to be removed in the future, you won’t be protected under INA 245(i). 

Does 245(i) exempt the J-1 holder’s home residency requirement?

No. INA 245(i) does not operate as a waiver to the two-year residency requirement for J1 visa holders. If you are subject to the two-year residency requirement, you will still have to get a waiver specifically for this or fulfill the requirement before you can adjust your status. 

What are the three and ten-year bars, and why should they be of concern?

Before INA 245(i) was in force, foreign nationals who were “out of status” had to return to their home country and complete the process for an immigrant visa at a U.S. consulate. However, if they were out of status for more than 180 days, they would be barred from re-entering the U.S. for at least 3 years once they left. If they were out of status for more than 360 days, they were barred from re-entering the U.S. for at least 10 years. 

With INA 245(i) now being in force, you can stay in the U.S. and adjust status to permanent resident even if you were or are out of status. Once you are a permanent resident, the re-entry bars don’t apply anymore, so you can freely leave the U.S. without concern.

Even though INA 245(i) still allows you to adjust status, it does not, however, lift the bars once it has kicked in. It is, therefore, crucial if you are out of status and subject to the bars to not leave the U.S. until you have received your permanent residency. If you do, the re-entry bars will kick in, and INA 245(i) will not lift these bars and won’t help you in this situation. 

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Conclusion

INA 245(i) is a relief to many foreign nationals who have family in the U.S. and have built a life here. Despite being ineligible for permanent residency on a small ground or being barred from getting a green card for one mistake, you can adjust your status. You can get your green card without having to leave the U.S! And once you are a permanent resident, your status won’t expire. What a relief to know you can confidently continue to build your American dream!

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