Law Offices of Stuart J. Reich, PLLC

Practice Limited to Immigration & Nationality Law

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The 245(i) Penalty Provision

Q: What is 245(i)?

A: 245(i) was a section of the U.S. Immigration Law that allowed foreign nationals who were not in legal status to Adjust Status to Permanent Residence without leaving the U.S. This was and still is something normally not permitted once a person is out of status (except in certain very specific circumstances).

Under 245(i), the foreign national simply had to file an additional form and pay a fine to be eligible to adjust status to permanent residence within the U.S., rather than having to leave the U.S. to process at a U.S. Embassy or Consulate abroad.

Further, this was true not only when a foreign national had entered legally and then just stayed after his or her visa had expired, but also when the foreign national had entered without a visa (called "Entry Without Inspection" or "EWI") - something not forgiven by a petition based on marriage to a U.S. citizen.

Q: If I am out of status, can I use 245(i) to get a green card?

A: Maybe, but probably not. 245(i) had an expiration date - April 30, 2001 - and has not been renewed.

To be eligible for "grandfathering" under 245(i). a person who had filed at least the first stage of some sort of permanent residence case (such as a labor certification application, an Immigrant Visa Petition based on employment, or an Immigrant Petition for Alien Relative based on family relationship to a citizen or permanent resident) before April 30, 2001, AND this case had to be approvable at the time it was first filed. This would be true even if the person uses another case, filed after April 30, 2001, as the basis for obtaining permanent residence.

This provision of law had been extended several times - under the final extension leading up to April 30, 2001, an individual also had to have been physically in the US by December 2000 to qualify.

Most people seeking permanent residence today did not have a case on file before April 30, 2001 and so cannot use 245(i) to excuse a lack of valid status.



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The above is presented for informational purposes only, and does not constitute legal advice or create an attorney-client relationship with our firm. The information provided should not be used as guidance in pursuing an immigration matter absent consultation with a qualified immigration attorney.