Green Card through INA 245(i) Adjustment

Alert: On Nov. 2, 2020, the U.S. District Court for the Northern District of Illinois vacated the Inadmissibility on Public Charge Grounds final rule (84 Fed. Reg. 41,292 (Aug. 14, 2019), as amended by Inadmissibility on Public Charge Grounds; Correction, 84 Fed. Reg. 52,357 (Oct. 2, 2019)) (Public Charge Final Rule) nationwide.

On Nov. 2, 2020, the U.S. District Court for the Northern District of Illinois vacated the Inadmissibility on Public Charge Grounds final rule (84 Fed. Reg. 41,292 (Aug. 14, 2019), as amended by Inadmissibility on Public Charge Grounds; Correction, 84 Fed. Reg. 52,357 (Oct. 2, 2019)) (Public Charge Final Rule) nationwide. That decision was stayed by the U.S. Court of Appeals for the Seventh Circuit. On March 9, 2021, the Seventh Circuit lifted its stay, and the U.S. District Court for the Northern District of Illinois’ order vacating the Public Charge Final Rule went into effect.

We immediately stopped applying the Public Charge Final Rule to all pending applications and petitions that would have been subject to the rule. USCIS continues to apply the public charge inadmissibility statute, including consideration of the statutory minimum factors in the totality of the circumstances, in accordance with the 1999 Interim Field Guidance, which was in place before the Public Charge Final Rule was implemented on Feb. 24, 2020, to the adjudication of any application for adjustment of status. In addition, USCIS will no longer apply the separate, but related, “public benefits condition” to applications or petitions for extension of nonimmigrant stay and change of nonimmigrant status.

On or after March 9, 2021, applicants and petitioners should not provide information required solely by the Public Charge Final Rule. That means that applicants for adjustment of status should not provide the Form I-944, Declaration of Self-Sufficiency, or any evidence or documentation required on that form with their Form I-485. Applicants and petitioners for extension of nonimmigrant stay and change of nonimmigrant status should not provide information related to the receipt of public benefits on Form I-129 (Part 6), Form I-129CW (Part 6), Form I-539 (Part 5), and Form I-539A (Part 3).

If an applicant or petitioner has already provided such information, and USCIS adjudicates the application or petition on or after March 9, 2021, we will not consider any information provided that relates solely to the Public Charge Final Rule, including, for example, information provided on the Form I-944, evidence or documentation submitted with Form I-944, and information on the receipt of public benefits on Form I-129 (Part 6), Form I-129CW (Part 6), Form I-539 (Part 5), and Form I-539A (Part 3).

If you received a Request for Evidence (RFE) or Notice of Intent to Deny (NOID) requesting information that is solely required by the Public Charge Final Rule, including but not limited to Form I-944, and your response is due on or after March 9, 2021, you do not need to provide the information solely required by the Public Charge Final Rule. However, you need to respond to the aspects of the RFE or NOID that otherwise pertain to the eligibility for the immigration benefit you are seeking. If USCIS requires additional information or evidence to make a public charge inadmissibility determination under the statute and consistent with the 1999 Interim Field Guidance, we will send you another RFE or NOID. For information about the relevant court decisions, please see the litigation summary.

USCIS published new form editions for affected forms. Starting April 19, 2021, we will only accept the 03/10/21 editions. Until then, you can also use the prior editions specified on each form webpage.

Section 245(i) of the Immigration and Nationality Act (INA), as amended by the Legal Immigration Family Equity (LIFE) Act and LIFE Act Amendments of 2000 (Pub. L. 106-553 and -554), enables certain individuals who are present in the United States who would not normally qualify to apply for adjustment of status in the United States to obtain lawful permanent residence (get a Green Card) regardless of:

• The manner they entered the United States;
• Working in the United States without authorization; or
• Failing to continuously maintain lawful status since entry.

To qualify for this provision, you must be the beneficiary of a labor certification application (Form ETA 750) or immigrant visa petition (Forms I-130, Petition for Alien Relative, or I-140, Immigrant Petition for Alien Worker) filed on or before April 30, 2001. You must complete Supplement A to Form I-485, Application to Register Permanent Residence or Adjust Status, to apply under Section 245(i) provisions and submit it with your Form I-485. In most cases, you must also pay an additional $1,000 fee.

For more information, refer to section 245(i) of the Immigration and Nationality Act (INA).

You may be eligible to receive a Green Card through section 245(i) if you:

• Are the beneficiary of a qualified immigrant petition (Form I-130 or I-140) or application for labor certification (Form ETA-750) filed on or before April 30, 2001;
• Were physically present in the United States on Dec. 21, 2000, if you are the principal beneficiary and the petition was filed between Jan. 15, 1998, and April 30, 2001;
• Are currently the beneficiary of a qualifying immigrant petition (either the original Form I-130 or I-140 through which you are grandfathered or through a subsequently filed immigrant petition) or an application for labor certification;
• Properly file Form I-485, Application to Register Permanent Residence or Adjust Status, and Form I-485 Supplement A;
• Pay the $1,000 fee (unless exempt);
• Are physically present in the United States at the time you file Form I-485 and Supplement A;
• Have a visa immediately available to you;
• Are admissible to the United States or eligible for a waiver of inadmissibility or other form of relief; and
• Warrant the favorable exercise of discretion (this means the positive factors in your case outweigh the negative factors).

Depending on the circumstances, a spouse or child of a grandfathered individual may also be a grandfathered or may be eligible to adjust status as a dependent under section 245(i) of the INA.

Labor certifications or visa petitions filed to preserve an individual’s adjustment eligibility under Section 245(i) must be both “properly filed” (signed and submitted with the correct fees) and “approvable” (meritorious based on the facts and “non-frivolous”) when filed. To meet this test at a minimum, the filing must be timely (filed by April 30, 2001) and meet all applicable substantive requirements (“approvable when filed”). Deficiencies such as lack of fee or original signature disqualify the submissions.

If you withdraw the petition, or if USCIS or the former Immigration or Naturalization Service (INS) denied or revoked your petition after approval, you may still be grandfathered, depending on whether the visa petition or labor certification was “approvable when filed.” To remain eligible, the changed circumstances must relate to factors beyond your control rather than the merits of the petition at the time of filing.

As long as the petition or labor certification application was “approvable when filed,” you should remain grandfathered if the:

• Petitioner dies;
• Family member who filed the petition divorces you;
• Employer who filed the labor certification or subsequent Form I-140 goes out of business;
• Petitioner or the employer chooses to withdraw the petition or labor certification; or
• Petitioner or employer is otherwise not able to maintain the petition or labor certification application.

To obtain a Green Card, you must file Form I-485, Application to Register Permanent Residence or Adjust Status. You must also file Supplement A to Form I-485, with fees at the same time unless you meet an exception. For more information on exceptions, please see the instructions for Supplement A to Form I-485.

You should submit all of the following evidence with your Form I-485:

• Two passport-style photos;
• A copy of your government issued identity document with photograph;
• A copy of your birth certificate;
• A copy of your passport page with a nonimmigrant visa (if applicable);
• A copy of your passport page with admission (entry) or parole stamp (if applicable);
• Form I-94 Arrival/Departure Record (if applicable);
• Form I-693, Report of Medical Examination and Vaccination Record;
• Form I-864, Affidavit of Support, if applicable;
• Form I-944, Declaration of Self-Sufficiency, if applicable;
• Either the concurrently filed immigrant petition or Form I-797, Notice of Action, for the pending or approved immigrant petition that you are using as your basis of adjustment, if you are not adjusting based on the grandfathered immigrant petition;
• The correct Form I-485 filing fee; and
• Supplement A to Form I-485 with:
  • A copy of the immigrant petition or labor certification or Form I-797, Notice of Action, that you are using as the basis for 245(i) grandfathering;
  • Proof of your physical presence in the United States on Dec. 21, 2000, if applicable; and
  • $1,000 fee, if applicable.
  Employment and Travel Authorization

  Generally, when you have a pending Form I-485, you may apply for employment authorization by filing Form I-765, Application for Employment Authorization.

  You may also apply for an advance parole document by filing Form I-131, Application for Travel Document. An advance parole document authorizes you to appear at a port of entry to seek parole into the United States after temporary travel abroad. If you need to leave the United State temporarily while your Form I-485 is pending, please see the Instructions for Application for Travel Document webpage for more information. Generally, if you have a pending Form I-485 and you leave the United States without an advance parole document, we will consider you to have abandoned your application.

  For more information, see our Work Authorization and Travel Documents pages.

  Adjustment of Status Under Section 245(i) of the INA and LIFE Act Provisions

  Many people mistakenly believe that section 245(i) of the INA constitutes amnesty (that is, forgiveness of unlawful presence or other breaches of status). On the contrary, unlawful presence continues to accrue until you file an application for adjustment of status. Section 245(i) does not protect you from deportation, nor does having a grandfathered petition or application for labor certification place you in a period of stay authorized by the secretary of Homeland Security.

  For example, if you are illegally in the United States, you accrue unlawful presence until you properly file an application for adjustment of status. If you accrue 180 days or more of unlawful presence in the United States and then depart the United States (even if you previously obtained advance parole), you will trigger a bar to adjustment of status or immigrating on an immigrant visa (a three-year or 10-year bar under section 212(a)(9)(B) of the INA). In most instances, Section 245(i) does not forgive this bar.

  Other grounds of inadmissibility may apply even though you may have an application for adjustment of status under section 245(i). Unless you obtain a waiver or some other form of relief for any ground of inadmissibility, you may not qualify for adjustment of status under section 245(i).

  Furthermore, a United States employer who files a labor certification or Form I-140 with an unauthorized individual as beneficiary will be subject to sanctions if they are discovered to be knowingly employing that individual before adjustment of status or USCIS granting work authorization. Filing Form I-485 under section 245(i) does not protect an individual against removal based on an applicable ground of inadmissibility by Immigration and Customs Enforcement (ICE).

  Once the individual files Form I-485, they become eligible for work authorization and may work if they apply for and obtain an Employment Authorization Document.

  Background of Section 245(i) of the INA

  In 1994, Congress enacted section 245(i) of the INA, permitting certain individuals who were otherwise ineligible for adjustment of status in the United States to pay a penalty fee for the convenience of adjusting status without leaving the United States. Before enacting the LIFE Act Amendments, the window for preserving adjustment eligibility under section 245(i) ended on Jan. 14, 1998. After that, only “grandfathered” individuals (beneficiaries of labor certifications or immigrant visa petitions filed on or before that date) were eligible to adjust status under section 245(i). The cut-off date of section 245(i) changed several times; however, then-President Clinton signed into law a provision that changed the nature of section 245(i) to “grandfather” those individuals in the United States for whom an immigrant visa or application for labor certification was filed on or before Jan. 14, 1998.

  On Dec. 21, 2000, the LIFE Act Amendments temporarily restored eligibility under section 245(i) by replacing the previous cut-off date of Jan. 14, 1998, with a new date: April 30, 2001. Accordingly, a beneficiary of a labor certification application or immigrant visa petition filed on or before April 30, 2001, preserves an individual’s eligibility to adjust status under section 245(i) if they meet certain conditions. The LIFE Act added a significant requirement to section 245(i). If the qualifying petition or labor certification was filed after the previous cut-off date of Jan. 14, 1998, the individual must have been physically present in the United States on the date of enactment (Dec. 21, 2000) to qualify for section 245(i) benefits under LIFE.

  Section 245(i) grandfathers individuals as well as the applications or petitions filed for them. The basis of a grandfathered individual’s eventual adjustment, however, is not restricted to the application or petition filed to preserve adjustment eligibility. The grandfathered individual’s application for adjustment of status may be based on any adjustment provision available to the individual at the time of adjustment.

  For example, a qualifying Form ETA-750 filed on or before Jan. 14, 1998, preserves the individual’s eligibility to adjust status after that date. However, the filed ETA-750 does not commit that individual to adjustment on the basis of an employment based petition. If, after Jan. 14, 1998, the individual was named as beneficiary in a family based petition or won an immigrant visa in the diversity lottery, they may adjust status on the new basis. (The immigrant visa won in the diversity lottery will not grandfather an individual, but may be used as a basis of adjustment by an individual who is already grandfathered under section 245(i)).