Immigration Lawyer Ari Sauer – The Immigration Answer Man

Memphis immigration lawyer Ari Sauer provides news and information on US immigration law.

Can someone still apply for a green card under 245(i)?

QUESTION: Can someone still apply for adjustment of status under 245(i)?

THE IMMIGRATION ANSWER MAN – ARI SAUER: Yes. Someone can still apply for Adjustment of Status, also known as

1583552_fc10d2fb5f_z (resized)

Get out of jail card. Taken on November 19, 2004. Uploaded to Flickr on November 20, 2004 by Mark Strozier. Original [http://www.flickr.com/photos/r80o/1583552/ available here].

a green card application, under Section 245(i) of the Immigration and Nationality Act, if they are grandfathered in to eligibility.

To be eligible for 245(i) the applicant must have been the beneficiary of an application for Labor Certification filed with the Department of Labor OR an immigrant petition filed with USCIS (or with INS) on or before April 30, 2001. Beneficiaries of petitions or applications dated January 15, 1998 or later must also show that they were physically present in the US on December 21, 2000.

So if someone had an employer or family member that filed a qualifying application or petition on their behalf on or before April 30, 2001, they might be eligible to benefit from the 245(i) “amnesty”. Also, some people are grandfathered under 245(i) where a qualifying application or petition was filed for their spouse or parent, as long as the person would have been able to qualify as a derivative beneficiary of that petition or application at the time it was filed or before April 30, 2001.

Furthermore, someone can be grandfathered for 245(i) even if the qualifying petition or application was eventually denied, as long as the petition or application was approvable at the time it was filed.

Finally, if someone is not grandfathered under 245(i), but they are applying for a green card as the derivative beneficiary of someone who is grandfathered, then they may be able to apply under 245(i) as a derivative of their spouse or parent.

But this is a fairly complicated area of the law, so if you feel that you might be eligible to apply for a green card under INA section 245(i), you should consult with an attorney before filing an application for adjustment to make sure that you are eligible for the green card and that you have the documentation necessary to prove your eligibility.

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By Ari Sauer

Submit questions to The Immigration Answer Man by emailing your question to immigrationanswerman@gmail.com or by posting your question on FacebookTwitter or LinkedIn. Questions submitted by email will be posted without the personal information unless specifically requested. Where appropriate, and only upon request, a link to your website or blog can be included on The Immigration Answer Man blog. Due to the volume of questions received, not all questions submitted will be answered. Only general questions can be answered on this blog. For answers to specific questions about your situation, please schedule a consultation.

* This is an advertisement. Ari Sauer is a Memphis immigration lawyer with the Siskind Susser law firm. www.visalaw.com/ari.html. On this blog we answer questions as a service to our readers, but we cannot assume any liability related to reliance on anything herein, and responses to questions are not intended to establish an attorney-client relationship. Immigration laws and regulations are constantly changing and the rules stated may not apply to your situation. Readers are cautioned to schedule a consultation with an immigration lawyer before acting on anything stated in this blog. This blog is not intended to substitute for a consultation with a qualified immigration law attorney. Ari Sauer is licensed to practice law through the states of Tennessee, New York and New Jersey but is eligible to assist clients from throughout the US. Certification as an Immigration Specialist is not currently available in Tennessee, New York or New Jersey. Siskind Susser limits its practice strictly to immigration law, a Federal practice area, and we do not claim expertise in the laws of states other than where our attorneys are licensed.

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19 comments on “Can someone still apply for a green card under 245(i)?

  1. LTorres
    December 29, 2017

    My husbands uncle filed an I-130 for his sister who is my mother in law and my husband was considered a derivative under that petition; however the petition was considered “abandoned” and eventually was denied due to my mother in law not providing the required document (birth certificate) that showed the brother and sister relationship between herself and her brother. This was because on my mother in laws birth certificate which was registered in Mexico, didn’t list her mother’s name therefore the brother and sister relationship could not be established. So she opted not to submit her birth certificate resulting in the abandonment then later denial of the I-130. My question now is because of this I-130 being abandoned / denied is it still possible for my husband to get approved for adjustment of status through 245i under our approved I-130 due to our marriage??? His mother petition was filed back in 2000 which qualified them under 245i???

    I read up on 245i and it mentioned that as long as the I-130 was approvable at the time of filing then my husband would be able to adjust statist under our approved I-130 with the 245i. Approvable mentioned was signing forms, submitting required fees and it needed to be submittted by a certain date all of which was done. It never mentions the submission of documentation.

    Thank you!

    • “Approvable when filed” also means that the petition was not frivolous. So, for example, if the petitioner and beneficiary were actually not siblings, then the petition would be frivolous. You should be able to use the petition to grandfather under 245(i), but you should be prepared for the possibility that USCIS may require you to show that the petitioner and beneficiary were, in fact, siblings.
      If you would like to consult with me to discuss this further, you can call 901-507-4270, and my paralegal Jessica can assist you with scheduling an appointment.
      * Ari Sauer is a Memphis immigration lawyer with the Siskind Susser law firm. This is an advertisement. On this page we answer questions as a service to our readers, but we cannot assume any liability related to reliance on anything herein, and responses to questions are not intended to establish an attorney-client relationship. Immigration laws and regulations are constantly changing and the rules stated may not apply to your situation. Readers are cautioned to schedule a consultation with an immigration lawyer before acting on anything stated in this blog. This page is not intended to substitute for a consultation with a qualified immigration law attorney. Ari Sauer is licensed to practice law through the states of Tennessee, New York and New Jersey but is eligible to assist clients from throughout the US. Certification as an Immigration Specialist is not currently available in Tennessee, New York or New Jersey. The views and statements expressed on this blog do not necessarily reflect the views of the Siskind Susser law firm. Siskind Susser limits its practice strictly to immigration law, a Federal practice area, and we do not claim expertise in the laws of states other than where our attorneys are licensed

  2. Cynthia
    April 4, 2017

    My boyfriend and I have have been together for about 5 years already. We have a 3 year old son and have been talking about marriage. My boyfriend was born in Mexico and was brought to the US as an infant, so he attended an education institution here for the first . His father mentioned he has a 245 (1) form and this will help him out in the event when he fixes papers he won’t leave the country. Now, with this being said what are some of the tools I will need to apply or guidance that you recommend.

    • You should start by obtaining the documentation from his father to proved his eligibility under 245(i). I would also suggest looking into whether your boyfriend would be eligible for DACA Deferred Action.
      If you would like to have a consultation appointment with me to learn more about this, you can call 901-507-4270, and my paralegal, Jessica, can help you to schedule an appointment.
      * This is an advertisement. Ari Sauer is a Memphis immigration lawyer with the Siskind Susser law firm: http://www.visalaw.com/ari.html. On this blog we answer questions as a service to our readers, but we cannot assume any liability related to reliance on anything herein, and responses to questions are not intended to establish an attorney-client relationship. Immigration laws and regulations are constantly changing and the rules stated may not apply to your situation. Readers are cautioned to schedule a consultation with an immigration lawyer before acting on anything stated in this blog. This blog is not intended to substitute for a consultation with a qualified immigration law attorney. Ari Sauer is licensed to practice law through the states of Tennessee, New York and New Jersey but is eligible to assist clients from throughout the US. Certification as an Immigration Specialist is not currently available in Tennessee, New York or New Jersey. Siskind Susser limits its practice strictly to immigration law, a Federal practice area, and we do not claim expertise in the laws of states other than where our attorneys are licensed.

  3. Martin Martinez
    September 30, 2016

    Hello. Im from mexico i come t usa w out visa but my mom she green card holder have petition peri date 04/19/1993 ..when i was 23 i g merried w usc i have 3 kids and my wife file i130 visa petition was aproved … Can i still used my mom petition t ajustes my ststus inside united states how long i have t wait visa be available t me ..

    • It depends on the visa category that your mother’s petition was filed under. If it was an immediate relative petition (for example, if she was sponsored by a US citizen spouse) then it would not make you eligible for 245(i). If it was a preference petition I-130 (for example, if she was sponsored by a US citizen sibling) then it might make you eligible under 245(i).
      There is no wait for a visa to become available for someone being petitioned by their US citizen spouse, which is an immediate relative category petition.
      If you would like to have a consultation appointment with me to learn more about this, you can call 901-507-4270, and my paralegal, Jessica, can help you to schedule an appointment.
      * This is an advertisement. Ari Sauer is a Memphis immigration lawyer with the Siskind Susser law firm: http://www.visalaw.com/ari.html. On this blog we answer questions as a service to our readers, but we cannot assume any liability related to reliance on anything herein, and responses to questions are not intended to establish an attorney-client relationship. Immigration laws and regulations are constantly changing and the rules stated may not apply to your situation. Readers are cautioned to schedule a consultation with an immigration lawyer before acting on anything stated in this blog. This blog is not intended to substitute for a consultation with a qualified immigration law attorney. Ari Sauer is licensed to practice law through the states of Tennessee, New York and New Jersey but is eligible to assist clients from throughout the US. Certification as an Immigration Specialist is not currently available in Tennessee, New York or New Jersey. Siskind Susser limits its practice strictly to immigration law, a Federal practice area, and we do not claim expertise in the laws of states other than where our attorneys are licensed.

  4. Aries
    July 17, 2016

    hi I came in sept 1996 my mom filed for me in Nov 2010 can I have my interview here still under the 245i ?

    • A petition filed in 2010 would not qualify someone for eligibility under 245(i).
      If you would like to have a consultation appointment with me to learn more about this, you can call 901-507-4270, and my paralegal, Jessica, can help you to schedule an appointment.
      * This is an advertisement. Ari Sauer is a Memphis immigration lawyer with the Siskind Susser law firm: http://www.visalaw.com/ari.html. On this blog we answer questions as a service to our readers, but we cannot assume any liability related to reliance on anything herein, and responses to questions are not intended to establish an attorney-client relationship. Immigration laws and regulations are constantly changing and the rules stated may not apply to your situation. Readers are cautioned to schedule a consultation with an immigration lawyer before acting on anything stated in this blog. This blog is not intended to substitute for a consultation with a qualified immigration law attorney. Ari Sauer is licensed to practice law through the states of Tennessee, New York and New Jersey but is eligible to assist clients from throughout the US. Certification as an Immigration Specialist is not currently available in Tennessee, New York or New Jersey. Siskind Susser limits its practice strictly to immigration law, a Federal practice area, and we do not claim expertise in the laws of states other than where our attorneys are licensed.

  5. Noel Moreno
    May 18, 2016

    If I marry a US citizen, and I use 245-i, the adjustment of status process is how long ?

    My father petition me in 1991,but case was abandoned.

    • A marriage-based application for adjustment of status takes the same amount of time, even when you are grandfathered for eligibility under 245(I). How long it will take will depend on how busy your local USCIS office is. Not including delays for requests for additional evidence or delays for security clearance, it usually takes between 3 to 6 months.
      If you would like to have a consultation appointment with me to learn more about this, you can call 901-507-4270, and my paralegal, Jessica, can help you to schedule an appointment.
      * This is an advertisement. Ari Sauer is a Memphis immigration lawyer with the Siskind Susser law firm: http://www.visalaw.com/ari.html. On this blog we answer questions as a service to our readers, but we cannot assume any liability related to reliance on anything herein, and responses to questions are not intended to establish an attorney-client relationship. Immigration laws and regulations are constantly changing and the rules stated may not apply to your situation. Readers are cautioned to schedule a consultation with an immigration lawyer before acting on anything stated in this blog. This blog is not intended to substitute for a consultation with a qualified immigration law attorney. Ari Sauer is licensed to practice law through the states of Tennessee, New York and New Jersey but is eligible to assist clients from throughout the US. Certification as an Immigration Specialist is not currently available in Tennessee, New York or New Jersey. Siskind Susser limits its practice strictly to immigration law, a Federal practice area, and we do not claim expertise in the laws of states other than where our attorneys are licensed.

  6. Naj Bou
    April 18, 2016

    Is it still possible to file a 245i? As far as I can tell, I meet all the requirements except the deadline of April of 2001 happened when I was 8 years old. I’m an adult now and gave not had status since 1998. Can I still file a 245i? My i-485 was denied due to not being in status and I want to refile with the 245i as my correction. I definitely qualify for it due to the fact that my dad had a labor Certificatation filed after Jan. 14, 1998 and I’ve been here since then.
    Is it still possible to file an 245i???

    • I don’t answer questions for specific cases on this blog. I only answer general questions. The answer to your general question is that someone who is grandfathered under 245(I) can still apply for adjustment of status under 245(I) even if they were previously denied adjustment of status.
      If you would like for me to review your documents and your situation to determine whether you are grandfathered for eligibility under 245(I), I would need to first have a full consultation appointment with you.
      If you would like to have a consultation appointment with me to learn more about this, you can call 901-507-4270, and my paralegal, Jessica, can help you to schedule an appointment.
      * This is an advertisement. Ari Sauer is a Memphis immigration lawyer with the Siskind Susser law firm: http://www.visalaw.com/ari.html. On this blog we answer questions as a service to our readers, but we cannot assume any liability related to reliance on anything herein, and responses to questions are not intended to establish an attorney-client relationship. Immigration laws and regulations are constantly changing and the rules stated may not apply to your situation. Readers are cautioned to schedule a consultation with an immigration lawyer before acting on anything stated in this blog. This blog is not intended to substitute for a consultation with a qualified immigration law attorney. Ari Sauer is licensed to practice law through the states of Tennessee, New York and New Jersey but is eligible to assist clients from throughout the US. Certification as an Immigration Specialist is not currently available in Tennessee, New York or New Jersey. Siskind Susser limits its practice strictly to immigration law, a Federal practice area, and we do not claim expertise in the laws of states other than where our attorneys are licensed.

  7. oleg
    February 17, 2016

    Question: I’m grandfathering from 245(i) employment base(everything was filed in time). my employer out of bushiness 10 years ago.
    Now after sating an working in US illegally for 17 years I’m applying for my Green card. Should I fill form I-864 Affidavit of Support for that if so who can be my sponsor?

    • Oleg:

      You should definitely consult with me, or another experienced immigration attorney, before you file a green card application. It seems to me that you do not understand what the 245(i) rule is and how it applies in your situation. So I highly recommend that you have a consultation with an experienced immigration lawyer before your file anything.

      If you would like to have a consultation appointment with me to learn more about this, you can call 901-507-4270, and my paralegal, Jessica, can help you to schedule an appointment.

      * This is an advertisement. Ari Sauer is a Memphis immigration lawyer with the Siskind Susser law firm. On this blog we answer questions as a service to our readers, but we cannot assume any liability related to reliance on anything herein, and responses to questions are not intended to establish an attorney-client relationship. Immigration laws and regulations are constantly changing and the rules stated may not apply to your situation. Readers are cautioned to schedule a consultation with an immigration lawyer before acting on anything stated in this blog. This blog is not intended to substitute for a consultation with a qualified immigration law attorney. Ari Sauer is licensed to practice law through the states of Tennessee, New York and New Jersey but is eligible to assist clients from throughout the US. Certification as an Immigration Specialist is not currently available in Tennessee, New York or New Jersey. Siskind Susser limits its practice strictly to immigration law, a Federal practice area, and we do not claim expertise in the laws of states other than where our attorneys are licensed.

  8. James
    July 21, 2015

    Question: I was in the country in March 2000. I never knew about 245(i) or flied any kind of paper. I am undocumented. Married. Is there any way I am qualified? I really do not want to have to leave the U.S. to go back out to my country to get a visa. It scares me to death. What can I Do? I am married to US citizen.

    • As you can see from the article above, in order to be eligible for 245(I) someone one must have filed an immigrant petition or a Labor Certification for you (or for a spouse or parent where you were eligible to be a derivative beneficiary) on or before April 30, 2001 or on or before January 15, 1998. Without that you are not eligible. However, those that are applying as Immediate Relatives (spouses of a US citizen or unmarried children under 21 of a of a US citizen), who were inspected at a Port of Entry and lawfully admitted or paroled into the US, do not need to be eligible for 245(I) in order to apply for Adjustment of Status to that of a Lawful Permanent Resident in the US. So if you did not enter the US without inspection, then you may still be eligible to apply here in the US. Either way, you should consult with an experienced immigration attorney to determine whether you are eligible to apply here in the US, or if other options are available to you to legalize your status.
      If you would like to consult with me about this further, you can call 901-507-4270 and my paralegal, Jessica, can help you schedule a consultation appointment.
      * This is an advertisement. Ari Sauer is a Memphis immigration lawyer with the Siskind Susser law firm. http://www.visalaw.com/ari.html. On this blog we answer questions as a service to our readers, but we cannot assume any liability related to reliance on anything herein, and responses to questions are not intended to establish an attorney-client relationship. Immigration laws and regulations are constantly changing and the rules stated may not apply to your situation. Readers are cautioned to schedule a consultation with an immigration lawyer before acting on anything stated in this blog. This blog is not intended to substitute for a consultation with a qualified immigration law attorney. Ari Sauer is licensed to practice law through the states of Tennessee, New York and New Jersey but is eligible to assist clients from throughout the US. Certification as an Immigration Specialist is not currently available in Tennessee, New York or New Jersey. Siskind Susser limits its practice strictly to immigration law, a Federal practice area, and we do not claim expertise in the laws of states other than where our attorneys are licensed.

  9. Twinkle khanne
    April 18, 2013

    Hello,
    My Husband’s uncle submitted an i-130 in 1996 with my father in law as principal beneficiary and my husband as derivative beneficiary. At that time my husband was 15 years old. Their priority date became current in 2007 but my husband was denied green card because he was over 21 at that time. His whole family got green card in 2009 through that application except him. My husband was in H1 at one point and now in H4. He kept working for a company though he is not allowed to work anymore under H4. Can he still apply for adjustment of status under 245(i)?

    • Someone who was the derivative beneficiary of a petition that makes them eligible for 245(i) would still remain eligible for 245(i) even if they are not able to get the green card based on that petition. However that person would then need a new basis to apply for a green card, such as a new I-130 or being petitioned for by their employer.

      If you would like assistance with your husband’s case, you can call 901-507-4270 to schedule a consultation appointment with me.

      * This is an advertisement. Ari Sauer is a Memphis immigration lawyer with the Siskind Susser law firm. http://www.visalaw.com/ari. On this blog we answer questions as a service to our readers, but we cannot assume any liability related to reliance on anything herein, and responses to questions are not intended to establish an attorney-client relationship. Immigration laws and regulations are constantly changing and the rules stated may not apply to your situation. Readers are cautioned to schedule a consultation with an immigration lawyer before acting on anything stated in this blog. This blog is not intended to substitute for a consultation with a qualified immigration law attorney. Ari Sauer is licensed to practice law through the states of Tennessee, New York and New Jersey but is eligible to assist clients from throughout the US. Certification as an Immigration Specialist is not currently available in Tennessee, New York or New Jersey. Siskind Susser limits its practice strictly to immigration law, a Federal practice area, and we do not claim expertise in the laws of states other than where our attorneys are licensed.

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