Adjustment of status under Sections
245(a), 245(i), and 245(k)
Adjustment of status is authorized by Section 245 of the Immigration and Nationality Act. That section contains a number of important subsections, which deal with various eligibility issues. The initial grant of authority for adjustment of status is contained in subsection (a), which provides:
245(a) The status of an alien who was inspected and admitted or paroled into the United States or the status of any other alien having an approved petition for classification under subparagraph (A)(iii), (A)(iv), (B)(ii), or (B)(iii) of section 204(a)(1) or 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, and
(3) an immigrant visa is immediately available to him at the time his application is filed.
This section is further modified by subsection (c), which states:
245(c) Other than an alien having an approved petition for classification under subparagraph (A)(iii), (A)(iv), (A)(v), (A)(vi), (B)(ii), (B)(iii), or (B)(iv) [Note, these sections all relate to certain family based applications] of section 204(a)(1), subsection (a) shall not be applicable to
(1) an alien crewman;
(2) subject to subsection (k), an alien (other than an immediate relative as defined in section 201(b) or a special immigrant described in section 101(a)(27)(H), (I), (J), or (K)) who hereafter continues in or accepts unauthorized employment prior to filing an application for adjustment of status or who is in unlawful immigration status on the date of filing the application for adjustment of status or who has failed (other than through no fault of his own or for technical reasons) to maintain continuously a lawful status since entry into the United States;
(3) any alien admitted in transit without visa under section 212(d)(4)(C);
(4) an alien (other than an immediate relative as defined in section 201(b)) who was admitted as a nonimmigrant visitor without a visa under section 212(l) or section 217;
(5) an alien who was admitted as a nonimmigrant described in section 101(a)(15)(S);
(6) an alien who is deportable under section 237(a)(4)(B);
(7) any alien who seeks adjustment of status to that of an immigrant under section 203(b) and is not in a lawful nonimmigrant status; or
(8) any alien who was employed while the alien was an unauthorized alien, as defined in section 274A(h)(3), or who has otherwise violated the terms of a nonimmigrant visa.
Thus, unless an applicant meets all of the eligibility requirements of these two subsections, the applicant is not permitted to file an application for adjustment of status. There are two important exceptions to this rule, however, and these are contained in Sections 245(k) and 245(i).
Section 245(k) provides an exception for applicants who have violated their status previously if they meet certain conditions. Notably, these are that the applicant is an employment based first second or third preference immigrant, the applicant has been lawfully admitted to the U.S. on his or her most recent entry, and the applicant has not, for a total period of 180 days, failed to maintain status, engaged in unauthorized employment, or otherwise violated status.
If an applicant qualifies under this provision, then it is not necessary to pay the $1,000 fine which is required by Section 245(i). The specific terms of Section 245(k) are as follows:
245(k) An alien who is eligible to receive an immigrant visa under paragraph (1), (2), or (3) of section 203(b) [Note: these are the employment based first, second and third preference categories] (or, in the case of an alien who is an immigrant described in section 101(a)(27)(C), under section 203(b)(4)) may adjust status pursuant to subsection (a) and notwithstanding subsection (c)(2), (c)(7), and (c)(8), if--
(1) the alien, on the date of filing an application for adjustment of status, is present in the United States pursuant to a lawful admission;
(2) the alien, subsequent to such lawful admission has not, for an aggregate period exceeding 180 days--
(A) failed to maintain, continuously, a lawful status;
(B) engaged in unauthorized employment; or
(C) otherwise violated the terms and conditions of the alien's admission
Finally, if an applicant does not otherwise qualify for adjustment of status, there is Section 245(i). This section permits applicants to adjust status if they have either entered the United States illegally or who have, subsequent to lawful entry violated their status, providing they qualify. To qualify, an applicant must show that an immigrant preference petition (I-130, I-140, I-360) was filed on their behalf earlier than April 30, 2001, or that an individual labor certification was filed on their behalf prior to that date. It is not necessary that the specific petition or labor certification used to qualify for Section 245(i) coverage receive an approval, or even form the basis for immigrant eligibility for the applicant. Also, a qualifying petition or labor certification filed on behalf of the principal applicant will qualify all dependant family members for coverage under Section 245(i).
An applicant who qualifies under this section must file form I-485A in addition to all other required forms and, if over the age of 16, must pay a fine of $1,000.
The specific terms of Section 245(i) provide:
(1) Notwithstanding the provisions of subsections (a) and (c) of this section, an alien physically present in the United States--
(i) entered the United States without inspection; or
(ii) is within one of the classes enumerated in subsection (c) of this section;
(B) who is the beneficiary (including a spouse or child of the principal alien, if eligible to receive a visa under section 203(d)) of--
(i) a petition for classification under section 204 that was filed with the Attorney General on or before April 30, 2001; or
(ii) an application for a labor certification under section 212(a)(5)(A) that was filed pursuant to the regulations of the Secretary of Labor on or before such date; and
(C) who, in the case of a beneficiary of a petition for classification, or an application for labor certification, described in subparagraph (B) that was filed after January 14, 1998, is physically present in the United States on the date of the enactment of the LIFE Act Amendments of 2000.
may apply to the Attorney General for the adjustment of his or her status to that of an alien lawfully admitted for permanent residence. The Attorney General may accept such application only if the alien remits with such application a sum equaling $1,000 as of the date of receipt of the application, but such sum shall not be required from a child under the age of seventeen, or an alien who is the spouse or unmarried child of an individual who obtained temporary or permanent resident status under section 210 or 245A of the Immigration and Nationality Act or section 202 of the Immigration Reform and Control Act of 1986 at any date, who—
(i) as of May 5, 1988, was the unmarried child or spouse of the individual who obtained temporary or permanent resident status under section 210 or 245A of the Immigration and Nationality Act or section 202 of the Immigration Reform and Control Act of 1986;
(ii) entered the United States before May 5, 1988, resided in the United States on May 5, 1988, and is not a lawful permanent resident; and
(iii) applied for benefits under section 301(a) of the Immigration Act of 1990. The sum specified herein shall be in addition to the fee normally required for the processing of an application under this section.
(2) Upon receipt of such an application and the sum hereby required, the Attorney General may adjust the status of the alien to that of an alien lawfully admitted for permanent residence if—
(A) the alien is eligible to receive an immigrant visa and is admissible to the United States for permanent residence; and
(B) an immigrant visa is immediately available to the alien at the time the application is filed.
(A) The portion of each application fee (not to exceed $200) that the Attorney General determines is required to process an application under this section and is remitted to the Attorney General pursuant to paragraphs (1) and (2) of this subsection shall be disposed of by the Attorney General as provided in subsections (m), (n), and (o) of section 286,except that in the case of fees attributable to applications for a beneficiary with respect to whom a petition for classification, or an application for labor certification, described in paragraph (1)(B) was filed after January 14, 1998, one-half of such remaining portion shall be deposited by the Attorney General into the Immigration Examinations Fee Account established under section 286.
(B) Any remaining portion of such fees remitted under such paragraphs shall be deposited by the Attorney General into the Breached Bond/Detention Fund established under section 286.
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