How
Do I Benefit From Section 245(i)?
NOTE:
Since April 30, 2001, you cannot qualify for 245(i) benefits, but
you may be eligible if your visa qualification petition was previously
filed. See the "Who is Eligible" section.
Background
What Does the Law Say?
Who is Eligible?
How Do I File the Application?
Will I Get a Work Permit?
Can I Travel Outside the United States?
How Can I Check the Status of My Application?
How Can I Appeal?
Can Anyone Help Me?
Background
Our immigration laws allow qualified individuals to enter the United
States as lawful permanent residents ("green card?holders) after
they obtain immigrant visas from a consulate or embassy outside
the United States or, for many immigrants already lawfully in the
United States, through a process called "adjustment of status.?
If you entered the United States unlawfully, if you entered with
permission but did not stay in lawful status, or if you worked without
permission, you normally would have to leave the United States in
order to apply for an immigrant visa. Special rules under section
245(i) may allow you to apply to adjust
status without leaving the United States.
You might need section 245(i) if you:
- Entered the U.S. without being
inspected by an Immigration official.
- Stayed in the U.S. longer than
allowed by Immigration.
- Entered the U.S. as a worker on
an aircraft or ship (crewman).
- Entered the U.S. as a "Transit
Without Visa.?br>
- Failed to continuously maintain
a lawful status since your entry into the US.
- Worked in the U.S. without Immigration
permission.
- Entered as an "S?nonimmigrant
(relates to witnesses about criminal or terrorism matters).
- Are seeking a work-related visa
and are out of status at the time of filing the application to
adjust status (Form I-485).
- Worked in the U.S. while being
an "unauthorized alien.?
NOTE: There are some
groups that may not need to use section 245(i).
- The spouse or unmarried minor child
of a U.S. citizen or the parent of a U.S. citizen child at least
21 years of age if he/she was inspected and lawfully admitted
to the United States, but subsequently overstayed his/her authorized
admission or worked without permission, may apply for adjustment
of status under section 245(a) and does not need to use section
245(i).
- Certain persons who are eligible
for certain employment-based immigrant visas and who were inspected
and lawfully admitted to the United States, but have not violated
their status or worked without permission for more than 180 days,
do not have to apply for adjustment of status under section 245(i).
They may be able to use section 245(k).
What Does
the Law Say?
The Immigration and Nationality Act is a law that governs the admission
of immigrants to the United States. For the part of the law concerning
adjustment of status and the 245(i) provision, please see
INA ?245. The specific eligibility requirements and procedures
for applying to adjust status and the penalty provision are included
in the Code of Federal Regulations [CFR] at 8 CFR ? 245.1,
245.2 and 245.10.
Who is
Eligible? (Note: This program ended April 2001.)
You are eligible if one of the reasons above prevent you from using
the regular section 245 provision AND:
- You are eligible to receive an
immigrant visa and are admissible to the United States for permanent
residence;
- An immigrant visa is immediately
available at the time your application is filed;
- Your visa petition or application
for labor certification that would qualify you to become an immigrant
was filed on or before April 30, 2001, was approvable when filed;
AND
- If your petition or application
was filed after January 14, 1998, then you must also prove that
you were in the U.S. on December 21, 2000.
If eligible, you must pay the penalty
fee of $1,000.
How Do I File
the Application?
You must submit an adjustment of status package of forms (Form
I-485 package) as well as Supplement
A to Form I-485. Please carefully read the introductory page
to the Form I-485 for complete details. These details are different
depending on the visa qualifications that you have. The introductory
page will also tell you where to file.
Will I Get
a Work Permit?
Applicants who are inside the United States and have filed Form
I-485 (Application to Register Permanent Residence or Adjust Status)
are eligible to apply for a work permit while their case is pending.
You should use Form
I-765 to apply for a work permit.
You do not need to apply for a work
permit once you are granted an immigrant visa or adjust to permanent
resident status. As a legal permanent resident, you should receive
a permanent resident card that will provide evidence that you have
a right to live and work in the United States permanently. Please
see How
Do I Get a Work Permit? for more information.
Can I Travel
Outside the United States?
If you are applying for adjustment to permanent resident status,
you must receive advance permission to return to the United States
if you are traveling outside the United States. This advance permission
is called Advance Parole.
Note: However, if
you have accrued more than 180 days of unlawful presence and then
travel abroad, you will be barred from adjustment of status for
either three years or 10 years, even if you were granted "Advance
Parole," unless you are granted a hardship waiver. Generally, the
three-year bar to admission applies to those who were unlawfully
present in the United States for more than 180 days and leave the
country, and the 10-year bar applies to those who were unlawfully
present in the United States for one year or more and leave the
country.
If you do not apply for Advance Parole
before you leave the country, you will abandon your application
with USCIS, and you may not be permitted to return to the United
States. For more information, please see How
Do I Get a Travel Document?
How Can I
Check the Status of My Application?
Please contact the USCIS
office that received your application. You should be prepared
to provide the USCIS with specific information about your application.
Please see our instructions on checking
the status of your application.
How Can I
Appeal?
If your application to adjust to permanent residence status is denied,
you will receive a letter that will tell you why the application
was denied. If you are not in a current, legal status, the process
to remove you from the country will begin as soon as your application
is denied. You will be allowed to have an immigration judge review
the denial of your application during removal proceedings. During
this review, Immigration must prove that the facts on your application
were untruthful and that your application was properly denied. If
the immigration judge decides to remove you from the country, you
may appeal this decision. Generally, you may appeal within 33 days
after the immigration judge decides to remove you from the country.
After your appeal form and a required fee are processed, the appeal
will be referred to the Board of Immigration Appeals in Washington,
D.C. For more information, please see, How
Do I Appeal A Denial of My Application or Petition?
Can Anyone
Help Me?
If advice is needed, you may contact the USCIS Office near your
home for a list of community-based, non-profit organizations that
may be able to assist you in applying for an immigration benefit.
Please see our Field
Offices page for more information on contacting Immigration
Offices.
|
