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245i Eligibility – How Deep and How Wide Does it Extend?

Section 245i of the INA is a powerful provision and solution to individuals who have entered the U.S. illegally, or have overstayed their visas.  Being unlawfully present in the United States is a very difficult existence, and our attorneys work tirelessly with clients to see if there is a legal solution.  One of the ways our clients finally get in status is through Section 245i of the INA.

It is important to understand that 245i eligibility extends to foreign nationals who may have not even been physically present in the United States when the application(s) were filed, and grandchildren may benefit.  However, the law is very complex and requires experienced Immigration legal counsel. We explain a real case situation below where a grandchild was able to benefit from 245i eligibility from an Immigrant petition that was filed prior to April 30th, 2001.

Section 245(i) allows certain persons, who have an immigrant visa immediately

available but entered without inspection or otherwise violated their status and thus are

ineligible to apply for adjustment of status in the United States, to apply if they pay a

$1,000 penalty. The LIFE Act temporarily extends the ability to preserve eligibility for

this provision of law until April 30, 2001. Use of Section 245(i) adjustment of status

previously was limited to eligible individuals who were the beneficiary of a visa petition

or labor certification application filed on or before January 14, 1998. USCIS Q & A

Facts from a Real Case:

Abe as a young child enters the US with inspection (“EWI”) by walking across the border with his family in 1989.  Abe’s USC grandparents filed an I-130 for their son Bob(Abe’s Dad) on April 18th 2001.  The petition includes listing Bob’s children, including Abe. Abe then still being a minor child would have been a derivative beneficiary of this petition.  The I-130 Petition was approved in May of 2002.

Immigration Legal Issue and Problem

Abe, now an adult, later marries a United States Citizen (USC).  As a derivative beneficiary of the 2001 petition is Abe 245i eligible and therefore able to adjust status to a U.S. Permanent Resident without risking having to leave the U.S. and consular process?

Solution and Discussion:

The category in which the son Bob (Abe’s Dad) was sponsored by Abe’s USC grandparent is critical and makes all the difference here. If Abe’s Dad was sponsored as an immediate relative, then Abe is not eligible for 245i since there are no derivative beneficiaries in this category. He would have to leave the United States. BUT,  if one of the other family based categories was the basis for the I-130 petition filed for Bob by USC Grandmother, then Abe is 245i eligible and can adjust status in the United States based on his marriage to his USC wife.

The good news is that based on these set of facts, Abe was 245i eligible since the family based category his Dad was sponsored in was a married child (not as an immediate relative of a USC) which had derivative beneficiary “privileges”.

To understand if you or someone you know qualifies for 245i eligibility in general or as a derivative, you may contact us at info@scottcclaw.com. Our telephone numbers are conveniently listed for you at www.scottcclaw.com.


ScottMond Law Firm


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