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ADJUSTMENT OF STATUS TO PERMANENT RESIDENCE, 245(i), K & V Visas.

Adjustment of status refers to the procedure for becoming a lawful
permanent resident without having to leave the United States. An alien
who was inspected and admitted or paroled into the United States may be
adjusted by the Attorney General, in his discretion and under such
regulations as he may prescribe, to that of an alien lawfully admitted
for permanent residence if:

1. the alien makes an application for such adjustment,

2. the alien is eligible to receive an immigrant visa and is admissible
to the United States for permanent residence,

3. and an immigrant visa is immediately available to him at the time his
application is filed.

8 CFR 245.1: The following categories of aliens are ineligible to apply for
adjustment of status to that of a lawful permanent resident alien under
section 245 of the Act, unless the alien establishes eligibility under
the provisions of section 245(i) of the Act and § 245.10, is not
included in the categories of aliens prohibited from applying for
adjustment of status listed in § 245.1(c), is eligible to receive an
immigrant visa, and has an immigrant visa immediately available at the
time of filing the application for adjustment of status:

  1. Foreign National Crewmen
    Those who, at the time of arrival, were serving in any capacity on board
    a vessel or aircraft or were destined to join a vessel or aircraft in
    the United States to serve in such a capacity are barred from adjustment
    of status.
  2. Transits Without Visas ("TWOV")
    Aliens who are in immediate and continuous transit through the United
    States to a foreign destination, in accordance with the terms of an
    agreement entered into between the transportation line and the INS, are
    not eligible for adjustment of status.
  3. Aliens Who Entered Under Visa Waivers
    An alien (other than an immediate relative) who was admitted as a
    nonimmigrant visitor without a visa under section 212(l) [visa waiver
    for B-1/B-2 admission to Guam] or section 217 [visa waiver pilot
    program] is barred from adjustment of status.
  4. Unauthorized Employment, Unlawful Status or Failure to Maintain Status
    Aliens who have engaged in unauthorized employment, who are not in
    lawful status at the time of filing of the adjustment application or who
    have failed to continuously maintain status since their entry into the
    United States are barred from adjustment of status. However, this
    statutory bar does not apply to immediate relatives of United States
    citizens or certain special immigrants.

Without Section 245(i), most persons who entered the U.S. without
inspection, overstayed an admission, acted in violation of the terms of
their status, worked without authorization, entered as a crewman, or
were admitted in transit without a visa would not have been eligible to
adjust status in the U.S. If an individual is eligible for permanent
residence, but not eligible for adjustment of status, that person might
still obtain permanent residence by leaving the U.S. and completing the
process for an immigrant visa at a U.S. consulate abroad. However, if
that individual had been unlawfully present in the U.S. for more than
180 days, he or she would be barred from reentering the U.S. for at
least 3 years, and perhaps as long as 10 years if unlawful presence is
more than one year. Under Section 245(i), an eligible individual can
remain in the U.S. to obtain permanent residence through adjustment of
status, and thus never trigger these entry bars. (Once permanent
residence is obtained, these entry bars no longer apply.)

Section 245(i) of the Immigration and Nationality Act become temporarily
available to illegal immigrants present in the United States on the date
of the enactment, December 21, 2000. Under the provision, a person
who--if it weren't for their illegal status--would qualify to immigrate
(such as the spouse of a US citizen), may adjust status after payment of
a $1000 fine is made, and providing the petition is “properly filed”
prior to April 30, 2001. For many people with status violations, leaving
the U.S. means they are subject to a three to ten year reentry bar.

In order to take advantage of the 245(i) grandfathering, individuals
must have an immigrant visa petition or a labor certification
application on file with the Immigration Service or Department of Labor
by April 30, 2001. The "grandfather"clause of Section 245(i) is extended
from January 14, 1998 until April 30, 2001. As a result, any beneficiary
of an immigrant visa petition or labor certification application filed
BEFORE April 30, 2001, (including a spouse or child of the alien
beneficiary if eligible to receive a visa under section 203(d) of the
Act) will be able to apply for adjustment of status under Section 245(i)
if necessary. If the qualifying visa petition or application for labor
certification was filed AFTER January 14, 1998, the alien must have been
physically present in the United States on December 21, 2000. This
requirement does NOT apply with respect to a spouse or child
accompanying or following to join a principal alien.

Another good feature is that there is no requirement that the person
adjust status in the same preference category that they were petitioned
for. In addition, once you qualify for benefits under Sec. 245(i), your
eligibility never expires.

Individuals wishing to file under the new grandfather date also must
show that they are physically present in the United States on the day
the bill was signed by the President, 12/21/2000. (The physical presence
requirement does not apply to 245(i) filings for individuals with
pre-January 14, 1998 priority dates.) There is no requirement that you
be in the U.S. lawfully, only that you be physically present in the US
when the law is signed. This requirement does NOT apply with respect to
a spouse or child accompanying or following to join a principal alien.

This means that you must have either an employer or a relative submit an
application for labor certification or a visa petition on your behalf by
April 30, 2001. In other words, you need a U.S. citizen parent, spouse,
adult child, or adult brother or sister; or a lawful permanent resident
spouse or parent (if you are single); or a US employer that desires your
services; to file a petition on your behalf before 4/30/01. It is not
necessary that the Labor Department or the INS approve your application
or petition by that date, only that it be filed. Also, even if the
petition or application is never approved, ultimately denied, or
withdrawn, as long as it was "approvable when filed" you are entitled to
the benefits of Sec. 245(i). However, applications or petitions that are
deficient because they were submitted without the proper fee, or because
they were fraudulent, or without any basis in law or fact, are not
considered to be "approvable when filed" and confer no benefits under
Sec. 245(i).

GRANDFATHERED DERIVATIVE FAMILY MEMBERS

Grandfathered children and spouses: Accepting Applications for Adjustment of Status Under Section 245(i) of the Immigration and Nationality Act, 06/10/1999 INS memo

Section 245(i) defines the term "beneficiary" to include a spouse or
child "eligible to receive a visa under section 203(d) of the Act." This
applies to spouses or children "accompanying or following to join" the
principal alien.

An alien who is accompanying or following to join an alien who is a
grandfathered alien is thus also the "beneficiary" of the grandfathered
petition or labor certification application and is also grandfathered.

Since an alien's ability to characterize himself or herself as
"accompanying or following to join" the principal alien depends on the
existence of a qualifying relationship at the time of the principal's
adjustment, adjudicators must determine whether the relationship existed
prior to the time the alien adjusted status. Officers should remember
that the burden of proof to establish the qualifying relationship rests
with the applicant.

The spouse or child of a grandfathered alien as of January 14 is also
grandfathered for 245(i) purposes. This means that the spouse or child
is grandfathered irrespective of whether the spouse or child adjusts
with the principal. The pre-January 15 spouse or child also are
grandfathered even after losing the status of spouse or child, such as
by divorce or by becoming 21 years of age, by the petitioner’s
naturalization, through the parents’ divorce, or even if the principal
or petitioner dies. Grandfathered eligibility attaches to the person and
not the petition. Many aliens with pending, grandfathered petitions or
labor certification applications will marry or have children after the
qualifying petition or application was filed but before adjustment of
status. These "after-acquired" children and spouses are allowed to
adjust under 245(i) as long as they acquire the status of a spouse or
child before the principal alien ultimately adjusts status.

An alien who becomes the child or spouse of a grandfathered alien
after the alien adjusts status or immigrates cannot adjust status under
section 245(i) unless he or she has an independent basis for
grandfathering.

"Aged-out" children

Often, a principal alien who has filed a visa petition or labor
certification application will have a "child" who reaches the age of 21,
and thus no longer meet the statutory definition of child, before the
petition or application is approved or the principal alien adjusts
status. However, such an "aged-out" beneficiary will remain a
beneficiary for the purpose of determining whether he or she may use
section 245(i) to adjust status.

Eligibility: An alien who is included in the categories of
restricted aliens under 245.1(b) and meets the definition of a
``grandfathered alien'' may apply for adjustment of status under section
245 of the Act if the alien meets the requirements of paragraphs (b)(1)
through (b)(7) of this section:

(1) Is physically present in the United States;
(2) Is eligible for immigrant classification and has an immigrant visa
number immediately available at the time of filing for adjustment of
status;
(3) Is not inadmissible from the United States under any provision of
section 212 of the Act, or all grounds for inadmissibility have been
waived;
(4) Properly files Form I-485, Application to Register Permanent
Residence or Adjust Status on or after October 1, 1994, with the
required fee for that application;
(5) Properly files Supplement A to Form I-485 on or after October 1,
1994;
(6) Pays an additional sum of $1,000, unless payment of the additional
sum is not required under section 245(i) of the Act; and
(7) Will adjust status under section 245 of the Act to that of lawful
permanent resident of the United States on or after October 1, 1994.

The New"V" Visa: TEMPORARY VISA FOR SPOUSES AND MINOR CHILDREN OF LEGAL PERMANENT RESIDENTS AWAITING AN IMMIGRANT VISA :

* INS Issues V Regulation (September 7, 2001, PDF)

The LIFE Act creates a new temporary visa, a "V' visa, that would allow the spouses and minor children of lawful permanent residents ("green card" holders) who are waiting their turn in the visa quota backlog line to enter the United States and be granted work authorization. They would be able to apply for the visa without leaving the US, and they would be eligible for the visas even if they entered the US without authorization or overstayed a visa. Formerly, spouses and minor children of legal permanent residents have had to wait four or five years out of the country and unable to visit their spouse or parent while waiting for green card priority dates to become current. (Currently they are prevented from getting a visitor visa because they are intending immigrants).

Allows the spouses and minor children of lawful permanent residents (the Family 2A category only) who have been waiting more than 3 years for a green card, to enter the United States and be granted work authorization. To qualify the spouse or child must meet the following criteria:

(1) A green card petition was filed on or before enactment of the law. The sponsoring permanent resident must already have filed a green card petition for the spouse or minor child with the INS on the date that the LIFE Act becomes law.

(2) Must have been waiting at least 3 years. The petition must either have been pending with the INS for three years or more or, if the petition has been approved, the spouse or minor child must have been waiting at least three years for their 'turn" in the green card line.

(3) Waiver of Grounds of Inadmissibility and Adjustment of Status. The law provides that periods in the United States in unauthorized status will not prevent someone from getting a V visa (Sec. 212(a)(9)(B) shall not apply) The law also would allow individuals already in the United States to apply to "adjust status" to the new V category, even if they are in the United States unlawfully (Sec. 212(a)(6)(A), (7), and (9)(B) shall not apply). With the reinstatement of Section 245(i), V visa holders will be eligible to adjust their status to legal permanent resident under that section.

These individuals may later apply to adjust status to permanent residence based on their sponsor's petition by paying a $1000 fee, as long as they were physically present in the United States between July 1 and October 1, 2000.

The "V" visa also would protect people from deportation, grant work authorization, and would allow adjustment for certain spouses and minor children who reside in this country and who are out of status. These benefits, directed to people who are out of status, are granted only to certain spouses and minor children of legal permanent residents; others are not granted these benefits, which go beyond that offered by a restored Section 245(i). Because Section 245(i) grants eligible people only the potential to adjust when they become eligible, but grants no legal status until then, the restoration of this much-needed provision would grant more people a lesser benefit. Further, it appears that the "V" visa is available only to those certain spouses and minor children who are in this country from July 1, 2000 to October 1, 2000.

Spousal reunification provision/expanded K Visa:

* INS Issues Interim K-3/K-4 Regulation (August 14, 2001, PDF)

This new visa, a variation on existing "K" status, would cover spouses of US citizens and their children who are living abroad. By expanding the eligibility for a K visa, the new law will allow the spouse of a U.S. citizen to enter the United States and obtain work authorization while waiting for the petition to be approved. The current K visa allows fiancees of US citizens to come to the US for marriage, and to work while awaiting the marriage. Spouses usually have to wait for up to a year to join their American wife or husband, and permission to visit meanwhile is rare. Spouses approved for the new K visa would be granted temporary work authorization. The bill provides that this new K status is available both to individuals with currently pending green card petitions and future applicants.

Any minor children who are accompanying the spouse can be included in the petition. In order to qualify the spouse and minor children must meet the following criteria:

(1) An immigrant visa petition must be previously filed. The law requires that the U.S. citizen file an immigrant petition before a visa can be issued to the spouse abroad. The K visa will allow the spouse abroad to enter the U.S. and await the approval of the petition.

(2) Recipient of the K visa must be outside of the United States. The law only authorizes the visa to be issued by a consular officer outside of the United States. There is no provision to "adjust status" for someone already in the United States in an unlawful status.

(3) The K visa petition must be filed in the United States by the U.S. citizen spouse.

(4) Must have a valid non-immigrant visa at the time that the K visa is issued. Where the marriage to the U.S. citizen occurred outside of the United States, the K visa recipient must have a valid non-immigrant visa issued by the consulate where the marriage occurred.

ADJUSTMENT OF STATUS OF CERTAIN LATE LEGALIZATION CLASS MEMBERS

To qualify a person must prove that he or she:

(1) Filed a written claim, before October 1, 2000, for class membership in CSS v. Meese, LULAC v. Reno, or INS v. Zambrano (three of the various class action lawsuits filed against the INS for their improper handling of the 1986 amnesty program).

(2) Entered the United States before January 1, 1982 and resided continuously in the United States in an unlawful status through May 4, 1988.

(3) Was continuously physically present in the United Sates beginning on November 6, 1986 and ending on May 4, 1988 (brief, casual and innocent absences will not interrupt a finding of continuous physical presence).

(4) Files an application for adjustment of status with the Attorney General within one year of the date on which the Attorney General issues final regulations to implement the new law. The Attorney General is required to issue those regulations within 120 days after enactment.

(4) Has not been convicted of any felony or three or more misdemeanors, has not assisted in the persecution of any person (on account of race, religion, nationality, political opinion or membership in a particular social group), and is registered or registering under the Military Selective Service Act (if required to do so under that Act).

(4) Is not inadmissible to the United States as an immigrant. The Attorney General may (for humanitarian purposes, to assure family unity, or when it is in the public interest) waive any of the grounds of inadmissibility except those relating to criminals, drug offenses, security grounds, and public charge grounds. In addition, the Attorney General may grant a waiver of the grounds of inadmissibility related to aliens seeking admission after previous removal and aliens present after previous immigration violations.

(4) Is able to pass the naturalization exam (relating to an understanding of basic civics and the ability speak, read, and write ordinary English), or show that they are satisfactorily pursuing a course of study (recognized by the Attorney General) to achieve such an understanding of English and civics.

Relief Granted Under the Law:

Eligible applicants will apply directly for permanent residence, rather than for temporary resident status.

* The Attorney General is required to establish a process under which an alien who has become eligible to apply for adjustment of status as a result of the enactment of this law and who is not physically present in the United States may apply for such adjustment from outside of the country.

* Applicants who submit a prima facie application under this law are entitled to a stay of deportation, work authorization, and permission to travel while their application is pending.

* The limitation on judicial review under IIRAIRA (Section 377) will not apply to applicants under these modifications and they will be entitled to the same review allowed by the 1986 laws.

* Newly legalized persons will not be disqualified from receiving certain public welfare assistance. (Under the original Section 245A applicants were disqualified from certain assistance for 5 years after their application was filed). However, they may still be subject to restrictions bases on the 1996 Welfare Reform Law.

* The confidentiality provisions of Section 245A (that generally prevent the information submitted on the application from being used for any purposes except criminal prosecution) will apply, except that information submitted by an applicant under the new law may be used in proceedings to rescind an adjustment of status.

GRANTS PROTECTION FROM DEPORTATION AND WORK AUTHORIZATION TO THE SPOUSES AND CHILDREN OF LATE LEGALIZATION APPLICANTS

Consistent with laws passed in 1990 to protect the family of legalization applicants who were already in the United States, the LIFE Act prevents the deportation of the spouses and minor children of a person who is applying for late legalization under the new law. Also consistent with prior laws, these family members are eligible for work authorization.

To be eligible for benefits a person must prove that he or she is:

* The spouse or unmarried child of a person who is eligible for adjustment of status as a result of the late legalization provisions of the LIFE Act.

* Entered the United States before December 1, 1998 and resided in the United States on that date.

* Has not been convicted of a felony or three or more misdemeanors in the United States, has not assisted in the persecution of any person (on account of race, religion, nationality, political opinion or membership in a particular social group), or is otherwise not a danger to the community of the United States. Relief Granted Under the Law.

* Eligible people will be protected from deportation for violations of status in the United States but will continue to be deportable for other grounds of deportation, including criminal activity.

* Eligible people will be entitled to work authorization in the United States.

* If the applicant for benefits under the late legalization provisions of the LIFE Act is applying from outside of the United States, the Attorney General is required to establish a process by which eligible spouses and children may be paroled into the United States in order to obtain the benefits under the new law.

PROVIDES CERTAIN WAIVERS AND PROTECTIONS AGAINST DEPORTATION FOR APPLICANTS UNDER NACARA AND HRIFA

Waiver of certain grounds of inadmissibility: In applications for adjustment of status under NACARA and HRIFA, the Attorney General may waive certain grounds of inadmissibility relating to re-entry after a previous order of deportation or removal (Sec. 212(a)(9)(A) and (C)O.

Section 245(i) Update
May 9, 2002

Senator Tom Daschle (D-SD), the Senate Majority leader, introduced the
Uniting Families Act of 2002 that extends Section 245(i).  Under Senator
Daschle’s proposal, the filing deadline would be extended until April
30, 2003, and people still would have to prove physical presence in
the US on December 21, 2000.

Unlike the House bill, this extension does not include any date by
which someone would have had to have established a relationship or filed
a labor certification in order to qualify.  The bill does state that
persons are ineligible for Section 245(i) based on marriage fraud and
security and related grounds.

The House passed a more restrictive extension of Section 245(i) that
includes a requirement that the family relationship, or a labor
certification application, must have been filed by August 15, 2001.

March 12, 2002: The House of Representatives approved an extension of
Section 245(i) by a vote of 275 to 137.
  • It will extend Section 245(i) until November 30, 2002, or four months
    after the INS issues regulations implementing the law, whichever is
    earliest.
  • Eligibility for Section 245(i) must be established prior to August 15,
    2001.  For people who are submitting a family-based application, the new
    provision would require that the “familial relationship that is the
    basis of the application” existed before August 15, 2001.  For people
    who are submitting an employment-based application, they would have to
    prove that a labor certification was submitted prior to August 15, 2001.
  • The Senate must now vote on similar legislation before it can be sent to
    the President for his signature.  As of yet, it is unclear whether the
    Senate will vote on this bill, or will draft a bill of its own.

Extension Update, 09/06/01 : S. 778 | H.R. 1885

The Senate and House have agreed on a compromise measure to extend section 245(i).  It appears that, under the compromise, many immigrant petitions filed before either April 30, 2002 or four months after regulations are issued (it is not clear whether it is the earlier or the later of these two dates) would form the basis for 245(i) eligibility.  However, there are some important exceptions.

For family cases, the family relationship must have existed before August 15, 2001.  In essence, this means that the 245(i) extension would not be applicable to marriage-based petitions where the marriage was not entered into before last month. 

Similarly, for employment cases based on labor certifications, the labor certification application must have been filed by August 15, 2001.  This means that the 245(i) extension would not be applicable to new labor certification applications not filed before last month. 

However, the extension would be applicable to employment-based petitions that do not require a labor certification. The compromise deleted an earlier provision that would have required, for employment-based cases, that the employment relationship have existed prior to April 30, 2001.  This provision was retroactive in effect, and thus would have effectively cancelled 245(i) eligibility for a large percentage of the labor certification applications filed before the last 245(i) deadline.  That provision is no longer in the bill.  Also, the date by which the family relationship must have been entered into was moved in the compromise from April 30, 2001 to August 15, 2001.

President Bush is expected to sign the bill once all the details are worked out. 

 

 

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