How to Adjust Your Status in the U.S.: Overcoming Adjustment of Status Ineligibility with INA 245(i) and 245(c) Exceptions

An immigration officer reviews documents with an applicant, symbolizing the critical role of thorough preparation and professionalism in securing a successful adjustment of status.

Introduction: For many people living in the U.S. without legal status, the dream of becoming a lawful permanent resident may seem out of reach. However, Adjustment of Status (AOS) under INA 245(a) provides a path to obtain a green card without needing to leave the U.S. This article will explain the basic requirements for AOS and dive into the common ineligibility issues, such as unauthorized entry or overstaying a visa, and how the Adjustment of Status INA 245(i) and 245(c) exceptions can provide a lifeline for many individuals.

General Requirements for Adjustment of Status Under INA 245(a):

To qualify for Adjustment of Status under INA 245(a), an applicant must generally meet the following criteria:

1. Lawful Entry: The applicant must have entered the U.S. legally, meaning they were inspected and admitted or paroled at a U.S. port of entry.

2. Eligible Category: The applicant must have a qualifying relationship (such as being the spouse, child, or parent of a U.S. citizen) or a valid employment-based sponsorship.

3. Physical Presence: The applicant must be physically present in the U.S. when filing for AOS.

4. Visa Availability: There must be an immigrant visa immediately available at the time of filing.

Once these requirements are met, the applicant can file Form I-485 to adjust their status. However, not everyone qualifies for AOS, especially if they entered the U.S. without inspection or fell out of lawful status.

Adjustment of Status INA 245(i) and 245(c) exceptions.

Ineligibility Under INA 245(c):

Under INA 245(c), certain individuals are barred from adjusting status if they have committed specific immigration violations. These include:

• Entering the U.S. without inspection (also called EWI).

• Failing to maintain lawful immigration status (e.g., overstaying a visa).

• Engaging in unauthorized employment while in the U.S.

For many, these barriers seem like the end of the road, but there are exceptions that allow people to adjust their status despite these ineligibility factors.

Exception to INA 245(c) for Immediate Relatives:

A key exception to INA 245(c) exists for immediate relatives of U.S. citizens, such as spouses, children (under 21), of U.S. citizen parents or parents of U.S. citizen sons and daughters older than 21 years of age. If you fall into one of these categories, you can still adjust your status, if you were admitted and inspected into the U.S.

For example, if you are married to a U.S. citizen and you were inspected and admitted, you can still apply for AOS through this exception, regardless of your current legal status, provided you have a qualifying family relationship.

Under U.S. immigration law, "inspected and admitted" refers to the process by which a noncitizen enters the United States through a lawful entry point. Here's a breakdown of each term:

• Inspected: This means that the individual is reviewed by a U.S. Customs and Border Protection (CBP) officer at a port of entry (such as an airport or land border crossing). The officer examines the individual’s documents, asks questions regarding their purpose of entry, and determines if they are eligible to enter the U.S.

• Admitted: After the inspection, if the CBP officer determines that the individual is eligible to enter the U.S., they are "admitted" into the country. The officer grants them permission to enter, either on a temporary basis (for nonimmigrants) or as a permanent resident (for immigrants).

In U.S. immigration law, "parole" refers to the temporary permission granted to a noncitizen to enter or remain in the United States without being formally admitted. Unlike being "inspected and admitted" at a port of entry, parole does not constitute legal admission into the U.S. Instead, it allows the individual to physically enter or stay in the country under specific conditions and for a limited time, without granting them full legal entry status.

Example: Carlos entered the U.S. with inspection several years ago. He is now married to a U.S. citizen. Under INA 245(c), but present in the U.S. without legal status. He would typically be barred from adjusting his status. However, as the spouse of a U.S. citizen, he qualifies for the exception and can proceed with applying for his green card through Adjustment of Status.

INA 245(i): The Lifeline for Those Who Don’t Qualify for 245(c) Exceptions

If you don’t qualify for the INA 245(c) exception, you may still be able to adjust your status through INA 245(i). This section allows individuals who entered the U.S. without inspection or are out of status to apply for adjustment of status, provided they meet specific requirements.

To qualify under INA 245(i), you must meet the following criteria:

1. An Immigrant Petition or Labor Certification Filed on or Before April 30, 2001: You must have had an immigrant petition (such as Form I-130 or I-140) or a labor certification (also known as PERM) filed on your behalf by this date.

   • Family-Based Petitions (Form I-130): Filed by a U.S. citizen or lawful permanent resident on behalf of a family member.

   • Employment-Based Petitions (Form I-140): Filed by an employer on behalf of a worker.

   • Labor Certification (PERM): Filed by a U.S. employer to certify that there are no available U.S. workers for a specific position.

2. Physical Presence on December 21, 2000: If your petition or labor certification was filed between January 14, 1998, and April 30, 2001, you must show that you were physically present in the U.S. on December 21, 2000.

Those who qualify under INA 245(i) must pay a $1,000 penalty fee, but they can adjust their status without leaving the U.S., even if they entered without inspection or violated their visa terms.

Example: Maria entered the U.S. without inspection in 1999. Her employer filed a labor certification for her in 2000. Since the labor certification was filed before April 30, 2001, and Maria was physically present in the U.S. on December 21, 2000, she qualifies for AOS under INA 245(i) by paying the penalty fee.

Steps to Apply for Adjustment of Status:

1. Determine Your Eligibility: Are you an immediate relative of a U.S. citizen (qualifying for the INA 245(c) exception), who entered with inspection, or do you have an old petition that qualifies under INA 245(i)?

2. File Form I-130 (Family Petition): This form establishes the family relationship between you and your U.S. citizen or lawful permanent resident relative.

3. File Form I-485 (Adjustment of Status Application): After your family petition is filed and once an immigrant visa also known as legal permanent resident status is available, you can file Form I-485 to begin the AOS process.

4. Attend Biometrics Appointment and Interview: USCIS will collect your fingerprints, and you may be required to attend an interview.

5. Receive Your Green Card Decision: If approved, you will receive your green card, allowing you to legally reside and work in the U.S.

How Barrera Legal Group Can Help:

Navigating the Adjustment of Status process can be complex, especially if you are facing barriers under INA 245(c) or trying to qualify under INA 245(i). At Barrera Legal Group, we have extensive experience guiding clients through these challenges and helping them secure legal status in the U.S.

Conclusion: If you’re living in the U.S. without status but have a U.S. citizen spouse or other qualifying relative, you may still have options to adjust your status. Whether you qualify under INA 245(c) or 245(i), our team at Barrera Legal Group is here to help you navigate the process and achieve your goal of legal residency. Contact us today to schedule a consultation and explore your options.