To preserve eligibility to file for adjustment of status under Section 245(i), an individual must be the beneficiary of an immigrant visa petition (Form I-130 or Form I-140), or an application for labor certification filed by April 30, 2001. If the petition or application was filed after January 14, 1998, the beneficiary must be able to demonstrate physical presence in the United States on December 21, 2000.
An application for adjustment of status (Form I-485) based on Section 245(i) does not need to be filed before April 30, 2001. The application can be filed when an immigrant petition is approved and a visa number is available for the beneficiary in the appropriate preference category in accordance with the State Department's monthly Visa Bulletin. The applicant must also pay the application fee and a $1,000 penalty fee.
The following are individuals who normally would not be eligible to adjust their status however with the reinstatement of Section 245(i) they are eligible until April 30, 2001.
People who entered the US without inspection;
People who have fallen out of valid nonimmigrant status or who have otherwise violated the terms of their status;
People who have engaged in unauthorized employment;
Crew members who entered the US with a D visa;
People admitted in the transit without visa category; and
People admitted under the Visa Waiver Pilot Program (now the Visa Waiver Permanent Program).
Although Section 245(i) allows for many people, who are usually ineligible, to adjust their status the following cases remain ineligible.
Stowaways,
People admitted on a K visa who failed to marry the petitioning US citizen within 90 days after arrival;
People subject to the J-1 two-year home residency requirement;
People who have failed to appear at a scheduled deportation hearing or asylum interview, or who have failed to follow a deportation order or grant of voluntary departure;
People who are seeking adjustment of status based on a marriage to a US citizen or permanent resident that was entered into while the person was in deportation proceedings, unless it can be shown that the marriage was entered into in good faith and not for immigration purposes;
People who were placed in removal proceedings upon their entry to the US;
Children in nonimmigrant status or seeking to adjust their status as orphans;
People in S visa status (government informants) who have not received permission from the Attorney General to seek adjustment of status; and
People who are deportable by reason of having engaged in terrorist activities while in the US.
To apply for adjustment of status under section 245(i), the applicant must submit both Form I-485, the standard adjustment of status application, and Supplement A to Form I-485, in addition to the other required forms. (The additional required forms vary depending on which basis you are applying.) If you are applying for a spouse, click here. If you are applying for a Family member (other than spouse) click here. Or if you are applying Based on Labor click here. Supplement A is used to determine whether the applicant is eligible for adjustment of status under section 245(i). Applicants will also be required to submit proof that they were in the US on the date section 245(i) was reinstated, December 21, 2000.
One of the provisions of the LIFE Act is the temporary reinstatement of Section 245(i) of the Immigration and Nationality Act (INA). Section 245(i) is not amnesty for all persons unlawfully in the United States. This provision only applies to certain persons residing in the United States who, although otherwise eligible for an immigrant visa, are barred from adjusting their status in the United States. It allows such persons to adjust their status in the United States instead of acquiring their visa abroad.
