Section 245 (i) Adjustment of Status
Adjustment of Status is an immigration process that allows persons to become permanent residents without leaving the U.S.
As a general rule, persons who entered the United States illegally (i.e. snuck across the border or otherwise entered without inspection by an immigration official) are not entitled to apply for lawful permanent residency in the U.S. by utilizing the adjustment of status process. As a result there are many undocumented and unlawful immigrants who are in the U.S. and despite being married to a U.S. Citizen have very few options for legalizing their status.
Anyone who enters the U.S. illegally and stays for more than 180 or 360 days is barred from returning for 3 or 10 years respectively. What this means for an unlawful immigrant who has remained in the U.S. for any significant amount of time is that even if he returns to their home county and obtains an immigrant visa he will be barred from entering the U.S. for 3 or 10 years. For families in this situation, being separated from their loved ones is not an option for both financial and emotional reasons.
There is an exception to the general rule that those who entered without inspection cannot use the adjustment of status process. That exception is rule 245 (i). If you entered the country without permission but an immigrant visa petition was filed for you on or before April 30th, 2011, you may be able to adjust your status to permanent resident without leaving the United States.
It is advisable that you seek the services of a qualified Immigration Attorney for a case evaluation, and to see if you qualify for adjustment of immigrant status, if any of the following situations apply to you:
- If you entered the United States without inspection by Immigration
- If you've stayed in the United States longer than allowed
- If you entered the United States as a ship's crew member or an airline worker
- If you entered as a “Transit Without Visa”
- If you have failed to maintain continuous legal status since your entry
- If you have been employed in the United States without permission from Immigration
- If you entered as an “S” or “J” nonimmigrant (unless the “J” visa holder has complied with their two–year foreign residency requirement or obtained a waiver of that requirement)
- If you have worked in the United States as an “unauthorized alien”
Other important factors exist which determine whether you are eligible to apply for permanent resident status under Section 245:
- You should have been physically present in the United States on December 21, 2000. There is not, however, any requirement that you need to have been in the United States since that date. If the petition was filed between January 14, 1998 and April 30, 2001 you must establish that you were physically present in the U.S. on December 21, 2000. However, If you are the beneficiary of a petition filed before January 14, 1998 you do not have to establish physical presence in the U.S. on December 21, 2000.
- You need to have an immigrant visa that is immediately available to you, and that was filed on or before April 30, 2001.
- You will also need to pay a $1,000 dollar penalty fee (plus, any fees related to your adjustment application).
There are a number of situations in which the penalty fee is waived; please seek the advice of your Immigration Attorney.Qualifying on a Family–Based Visa Petition
If you wish qualify to apply for an adjustment of status to permanent resident based upon the visa petition of a family member, there are certain conditions that apply.
It is important that your family member filed a Petition for Alien Relative on or before April 30, 2001. In addition, you must be one of the following:
- The legal spouse (husband or wife) of a United States citizen or lawful permanent resident;
- The unmarried child who was still a minor at the time of filing (under age 21) of a United States citizen or lawful permanent resident;
- The husband or wife of a United States citizen or lawful permanent resident;
- The unmarried child (under age 21) of a United States citizen or lawful permanent resident;
- The parent of a United States citizen;
- The unmarried adult child of a United States citizen;
- The married adult child of a United States citizen; or,
- The brother or sister of a United States citizen.
Spouses and children qualify for adjustment of status to permanent residency if their spouse or parent qualifies to adjust status under Section 245(i).Qualifying on an Employer–Based Visa Petition
If you are seeking to qualify to apply for an adjustment of status to permanent resident based upon an employer–based visa petition, you must be the beneficiary of a labor certification petition that was filed on or before April 30, 2001.Other Eligibility Factors
If you entered the United States without a proper visa, have fallen out of valid non–immigration status or have otherwise violated the terms of your status, you may still be eligible to adjust your status to permanent residency.
You may also be eligible if you entered the United States with a D Visa as a crew–member, or as part of a Transit Without Visa program, or under the Visa Waiver Pilot program.
Remember that qualifying for a Section 245(i) adjustment of status does not automatically make one a citizen. There are further steps to take to make sure the process goes without a hitch, and the services of an Austin Immigration will prove invaluable.When Should You Hire an Immigration Attorney to Assist in Your Adjustment of Status Matter?
As noted above, the adjustment of status process can seem overwhelming, given the complexities of the procedures, the exact legal status of a non–permanent United States resident and the documentation requirements.
Unless a person seeking an adjustment of status is prepared to educate themselves on the detailed nature of becoming a permanent resident, their best option may be to hire a qualified immigration attorney, who can do all the necessary work to make sure that the process runs smoothly and that the legal requirements are met without undue delay or confusion.
If you or someone you know is interested in obtaining an adjustment of status, Austin, Texas immigration attorney Daniella Lyttle of the Lyttle Law Firm can help. Ms. Lyttle has helped many clients with U.S. immigration matters, and she can help determine your eligibility, advise you as to how to proceed, and handle the complicated legal steps. Furthermore, because obtaining an adjustment of status is a matter of federal law, rather than state law, she can handle Adjustment of Status applications for citizens living in any state, not merely the State of Texas.
Because Ms. Lyttle is fluent in Spanish and Portuguese, she can communicate directly with clients in these languages, read and understand documents in these languages, and communicate with any foreign officials in these languages, if necessary.
The Lyttle Law Firm can give you and your family members peace of mind in undertaking this difficult and potentially frustrating and time–consuming task. Once hired, the Lyttle Law Firm will take over the application process from beginning to end, keeping clients informed, and taking the stress out of the process. If you are in need of immigration assistance, contact the Lyttle Law Firm.