CERTAIN aliens are barred from adjusting to legal permanent residents by virtue of having entered the United States under the following conditions:
Entering the US as an alien crewman (C-1 visa/ jumpship)
Accepting unauthorized employment
Entering the US without inspection (No I-94 or crossing the border without a visa)
Remaining in the US past the expiration of their status (overstays)
Status/ Visa violations
Admitted in the US in transit without a visa
Admitted in the US as a non immigrant visitor without a visa
These bars will prevent an alien from getting their green card inside the US even if they are eligible to receive a green card through a Petition that is current. Aliens that with the above issues who try to adjust may encounter problems with the USCIS.
INA section 245(i) waives these inadmissibility grounds for aliens that are grandfathered (covered) by INA section 245(i). How does someone get grandfathered by section 245(i)? An alien is grandfathered if the alien is a beneficiary of a qualifying petition filed prior to April 30, 2001 and the principal beneficiary was physically present in the US on 12/21/2000. For petitions filed on or before 1/14/1998, no physical presence in the US is required. Qualifying petitions are I-130s, I-140s, some I-360s and I-526s, labor certification applications, that are filed and approvable when filed. In addition, under Matter of Jara RIERO and Jara ESPINO L, 24 I&N Dec. 267(BIA 2007), the applicant must demonstrate bona fide marriage for I-130 filed based on marriage.
Derivative beneficiaries that existed at the time the qualifying petition was filed are independently grandfathered under section 245(i). They may adjust under a separate petition. After acquired dependents may adjust under 245(i) but are not independently grandfathered. After acquired dependents must adjust pursuant to the original qualifying petition that grandfathered them under section 245(i). If an alien is covered by section 245(i), the alien can adjust to a legal permanent resident by paying a $1,000 penalty and submitting evidence that the alien was a beneficiary of a qualifying petition.
Being covered by section 245(i) makes a lot of difference for aliens who lost their I-94. It is a common situation for aliens not to have their I-94 and passports if they entered the US many years ago. Sometimes, the I-94 and old passport are lost through the years when the alien move from one residence to another. The problem with this is the alien might have problem proving inspection into the United States specially if the alien is unable to obtain a replacement I-94 or present other proof of inspection such as the immigration admission stamp or a copy of the visa.
Another common situation are crew men under a C-1 visa that were inspected but admitted as “in transit.” Many of these crew men never make it to their final destination. The crew men instead decides to remain in the United States. What they do not realize is that they cannot adjust to legal permanent residence even if they end up marrying a US Citizen. However if they are grandfathered by section 245(i) such as if their parents were petitioned when they were minors, the crew men will be able to adjust inside the United States and get their green card by paying a $1,000 penalty and presenting evidence of the qualifying petition.
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Please note that this article is not legal advice and is not intended as legal advice. The article is intended to provide only general, non-specific legal information. This article is not intended to cover all the issues related to the topic discussed. The specific facts that apply to your matter may make the outcome different than would be anticipated by you. This article does create any attorney client relationship between you and the Law Offices of Kenneth U. Reyes, P.C. This article is not a solicitation.
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Attorney Kenneth Ursua Reyes is a Certified Family Law Specialist. He was President of the Philippine American Bar Association. He is a member of both the Family law section and Immigration law section of the Los Angeles County Bar Association. He is a graduate of Southwestern University Law School in Los Angeles and California State University, San Bernardino School of Business Administration. He has extensive CPA experience prior to law practice. LAW OFFICES OF KENNETH REYES, P.C. is located at 3699 Wilshire Blvd., Suite 747, Los Angeles, CA, 90010. Tel. (213) 388-1611 or e-mail [email protected] or visit our website at Kenreyeslaw.com
