Adjust Status without Leaving the USA: Who Qualifies and Who Doesn't (245i)

[@krzysztofoleksij]

I just found out that I qualify, since my mother successfully filed for a green card in September 1999. Only my application was denied due to aging out and I’m a 36 year old daca recipient.

[@jlw.immigrationlaw]

Oooh, exciting! I hope you are right that you qualify! We recommend having a consult with a trusted attorney to confirm you meet all the requirements for adjustment of status. Please reach out to us if we can be of assistance: jlw.law

[@SusyMaldonado]

Love the examples! Question what sort of physical presence prove “documentation” would I need to provide? To let people know they were here in the USA?

[@jlw.immigrationlaw]

Hello, Glad you like the video! The documents most often used to prove physical presence include pay stubs, tax forms, medical records including vaccination records, school records, bills, Western Union or similar receipts showing transfers of money, etc.

[@SusyMaldonado]

@@jlw.immigrationlaw thank you so much!

[@selfpity5155]

​@@jlw.immigrationlaw ik this is an old video but I have a question. What happens if your parents (separate at the time) crossed illegally, and crossed before 2001 April 30, but they don't have evidence of it. But my mother had married a guy in Mexico, but then divorced bc he was abusive, then remarried in America (with my father).

[@selfpity5155]

​@@jlw.immigrationlawis there a way to get them a green card?

[@gijon305]

Hello, I filed i-130 for my brother in 2001. Unfortunately, my brother left the US in 2000 and then came back. So 245i wouldn’t apply. Is i-130 still good or do i need to file a new i-130?

[@jlw.immigrationlaw]

Hello, In the case of someone who has a permanent bar, having an I-130 filed or approved does not provide any help. While anyone may file an I-130 for a qualifying relative, the intending immigrant must still qualify to file the application for residency, and if they have triggered the permanent bar, then their application won’t be approved unfortunately. If your brother did not trigger the permanent bar with the departure mentioned below, then he may still qualify, but a careful analysis would be important before filing any further documentation on his behalf.

[@Alfa_BJJ7]

I was granted witholding of removal, my wife and kids are US citizens. Can my wife and kids help me adjust my status if we see an immigration judge?

[@jenniferwalkergates5745]

Hello, This is a great question. Eligibility to adjust status stems from different facts than those that lead to a withholding of removal case. If the spouse of a U.S. citizen entered the USA with a visa and is not otherwise inadmissible, he or she may be eligible to adjust status through the marriage. If that person has already been granted withholding by a judge, then most likely the immigration court case has already concluded and the adjustment application would need to be filed and processed through USCIS. However, I would definitely recommend seeking a full analysis of this case to determine eligibility. I hope that helps!

[@Alfa_BJJ7]

@@jenniferwalkergates5745 This was very helpful 👏

[@my_journey-eg2vp]

How is this fair? That julio can adjust his status through the ex wife. I can't even use my father approval from 1993 because I was born in 94.

[@jlw.immigrationlaw]

The immigration laws are nothing if not unfair! We are happy to help you analyze how your case sits within this cruel and unfair immigration system - sometimes there is a way in spite of it all!

[@marik4944]

Hi, I have an 130 filed march 2001 approve 2005 my dad is resident when can I apply for adjustment of status? I'm Mexican. Do adjustment of status get send to the nvc?

[@jenniferwalkergates5745]

Hello, Unfortunately, we are not able to provide specific information about individual cases in this forum. However, the priority dates for adult children of permanent residents from Mexico are currently set at January 1, 2001 - however, individuals who are eligible for 245i may file their applications if their priority date is on or before May 1, 2001. I hope that helps!

[@almamartinez6867]

My step dad file 130i for my mother and her children in 1997. Can I file for adjustment of status without any petitioner??

[@horriblementecool4458]

My brother asked for my younger brother back in 2001. 21 years latter still waiting… my neighbor broke the law and in 3 years got his residence, for asylum. How come ???

[@jenniferwalkergates5745]

Hello, Yes, this is an example of the ways in which our immigration system is non-sensical. Siblings of U.S. citizens, adult children of U.S. citizens and permanent residents have extremely long waits for priority dates, especially if the family is from Mexico or a handful of other countries.

[@infinitymetta]

can someone with granted withholding of removal status adjust the status via court if the person got sponsored by the employer? thanks

[@jlw.immigrationlaw]

Hello, The case would need to be carefully analyzed to ensure the applicant meets the eligibility requirements for adjustment of status, but having withholding of removal does not per se automatically disqualify someone. If a waiver of unlawful presence is required, then risks of seeking such a waiver outside the USA would need to be weighed carefully.

[@SusyMaldonado]

So just to confirm…if people have the permanent bar then 245i will not help? Is there waivers for the permanent bar?

[@jlw.immigrationlaw]

Hi, Susy, Unfortunately, 245i does not overcome the permanent bar. The waivers available for the permanent bar are very limited - there is one for VAWA beneficiaries who prove that their second or later unlawful entry is connected to the abuse they suffered, and there are waivers available for U and T visa recipients. Additionally, individuals applying for cancellation of removal in immigration court are not subject to the permanent bar, and special immigrant juveniles and asylum grantees may be exempted as well. Otherwise, a person has to remain outside the USA for 10 years in order to seek a waiver of the permanent bar. As this is not possible for most people, it becomes a really heavy and cruel punishment for a very minor offense.

[@Texasdope11]

On example 2: April would be considered the derivative beneficiary and her mother would be considered the principal beneficiary, correct? The reason I ask my mother in law I 130 was approved and filed before 2001 (by her sister), which my wife was born in 1996 in MX, on the i485 (for my wife) ive put my mother in law as the primary beneficiary and my wife as as derivative beneficiary. Im just worried that I put that incorrect. Your help would be greatly appreciated!

[@jenniferwalkergates5745]

Hello, Yes, if April is trying to provide evidence of her physical presence in the USA, then shot records and school records are perfect for that purpose.

[@naveedmalik3765]

Thank you for the update.. can we apply for aos as f4 beneficiary, and apply for work authorization in the US, when date of filling is current..

[@jenniferwalkergates5745]

Hello, So long as your priority date is current and you meet the additional requirements for physical presence, no criminal bars, etc., then you should be able to file. However, a complete consultation with a trusted immigration attorney is always a good idea since the requirements for these cases are complex.

[@parfaitboussamba6094]

Hi, very intesting with you explain, so i'm out side of united state, but show ma training over there it's will give confidence. Please if you can guide me to do that please . Great Pleasure to read you

[@coyoteflooringinc606]

Beneficiary / daughter ..while dad was applying for the I-30 list sons and daughters underage listed as not applying ., can daughter still use dads approved case for her adjustment of her status? thank you

[@jlw.immigrationlaw]

Hello, It is a little difficult to answer your question without knowing more information, but generally speaking, if a person was a minor child when an I-130 petition was filed and approved for their parent, then that minor child should be able to use the I-130 petition filed for their parent for purposes of 245i. I hope that helps!

[@edwiedge]

Hi. I was petition by my brother last 1994 become current last 2020. Because of long wait my daughter got married last 2016 and can she use this petition as my beneficiary and applied 245i?thank you.

[@erikmartinez6916]

Hello, thank you for the informative video. Could my uncle apply for the 245i with a domestic violence that he got in 1997; he went to jail and was deported. My grandpa is his beneficiary who filed before the year 1999. Or could I apply for him as the beneficiary? I am 28

[@jlw.immigrationlaw]

Hi, Erik, In cases like the one described here, we would have to meet with the person to do a thorough eligibility analysis. One thing to note is that it is not possible to petition an uncle in our family-based immigration system. If we can be of further assistance, please have your uncle reach out to us for a consultation.

[@jahdut]

Is there a waiver for requirement of physical presence in USA December of 2000?

[@jlw.immigrationlaw]

Hello! While there is no waiver, the physical presence by December 21, 2000 requirement does not apply if the I-130 or I-140 petition was filed before January 15, 1998. If the petition was filed after that date, then the physical presence requirement is not waivable.

[@jahdut]

@@jlw.immigrationlaw thank you

[@pagpablo]

The penalty is only for unlawful entry? Or overstaying also requires paying the penalty.

[@jlw.immigrationlaw]

Hello, Pablo, This is a fundamental question; thanks for asking. Whether or not the overstay has to pay the 245i fee depends on who is petitioning for them. If their petitioner is a U.S. citizen spouse or adult child, they should be able to adjust their status through INA 245a (not 245i) and avoid paying the fee this way. If their petitioner is anyone other than a U.S. Citizen spouse or adult child, then an overstay would typically need to pay the penalty fee for a 245i adjustment. I know it isn’t obvious!

[@pagpablo]

@@jlw.immigrationlaw I ask because they put my N400 on hold after the interview because officer said they couldn’t find records of me paying the $1000 fee. Immigration made a mistake and didn’t charge my parents for the penalty. Should I just send payment using form I-485 Supplement A to overcome this issue?

[@jlw.immigrationlaw]

@@pagpablo Hi, Pablo, By law, USCIS has 120 days after the interview to issue a decision on your case. If they don’t, then you have the right to move your case to Federal Court. If I were working on your case, that is the direction I would be moving. It is their responsibility to complete the administrative work needed to rectify the issue with the past payment - we would not recommend simply sending them $1000, as there is no way to ensure that it will be applied correctly and dislodge your case from the “hold.”

[@jisheo]

I have another question. What if an individual has a history of attending fraudulent school, is that individual ineligible to get approved for a green card? How to apply for this 245i petition? Is this a part of i485?

[@jenniferwalkergates5745]

Hello, Generally, any kind of fraud can be a problem for purposes of immigrating or obtaining residency in the USA. However, usually a conviction is required to trigger inadmissibility. Hope that helps! If you would like a confidential individualized assessment of your case, don’t hesitate to reach out to us at walkergatesvela.as.me/WGV.

[@marionavas4786]

What if someone marries an USC and this person files a petition before 1998 but the marriage doesnt go anywhere and ends up in a divorce Would this petition help the beneficiary to adjust status and use 245i with a new petitioner?

[@jenniferwalkergates5745]

Hi, Mario, That sounds very similar to the situation we discuss in this video - as long as that old petition was valid when it was filed, it may still be used, even with a new petitioner.

[@jisheo]

I'm the son of the beneficiary. I have a history of DUI, is that going to prevent me from adjusting my status through 245i?

[@jenniferwalkergates5745]

Hello, Generally, having one DWI does not result in inadmissibility or ineligibility for adjustment of status. However, if you have multiple alcohol-related arrests, then you may be found inadmissible based on having a “physical or mental disorder that may pose a threat to the safety” of yourself or others. Anyone with multiple alcohol-related arrests, especially if they occurred within the past few years, would be strongly encouraged to work closely with a trustworthy and experienced immigration attorney. Thank you for the great question!

[@mrs.torres8548]

I believe my father flew to mexico in 2001 using his birth certificate. He successfully came back illegally. Would he still qualify? My mother never leaved.. if he doesn't qualify, does she? They married in 1984.

[@jisheo]

Is my case i245 qualified? My father filed a i140 petition back in 2001 March. Now that my mom filed a i140 petition in 2013 after she received her green card. Can I use that old i140 petition to file 245i?

[@jenniferwalkergates5745]

Hello, While we can’t speak to your individual case without a careful review, we can say that, generally, people who were minors and whose parents were beneficiaries of I-140 petitions prior to April 30, 2001 can use the previously filed petitions for purposes of 245i. Hope that helps! Good luck!

[@alexishermes1265]

How is this fair if it applies to only undocumented immigrants and not to those that overstayed their visas as well

[@jenniferwalkergates5745]

Hello, Immigration law in the United States is extremely unfair, unduly harsh, and non-sensical in most respects. The 245i provisions were created as a compromise between proponents of family unity and anti-immigration lawmakers, so 245i was enacted but with strict time limits. That’s why we have the April 30, 2001 limitation on petitions that can qualify for 245i. Visa overstays are only able to adjust status if they are an “immediate relative,” meaning a spouse, minor child, or parent of an adult U.S. citizen.

[@cesarcarofelix4096]

And what if I can’t find a receipt of proof that i was approved because the apartment caught on fire?

[@marik4944]

I lost my receipt and I call the ucis and they gave me my receipt number but your petitioner has to call with you

[@cesarcarofelix4096]

@@marik4944 thanks,he passed away in 2009

[@marik4944]

@@cesarcarofelix4096 sorry, in that case I don't know you should call and tell them.i know you can get a new petitioner when adjustment of status but you need a death certificate

[@cesarcarofelix4096]

@@marik4944 thank you very much👍🙂

[@jlw.immigrationlaw]

Hi, Cesar, it is possible to request a copy of the filing even if your petitioner is no longer alive, you would need to go through the Freedom of Information Act process. We help clients with this almost daily, and would be happy to visit with you about your options if that would be helpful. Please don't hesitate to reach out for a consultation if you need assistance: walkergatesvela.as.me/WGV.

[@gigiEng]

Hi, my grandma petition for my dad in 1992 she was a green card holder. He has the 245i. She became a us citizen last year, can my dad marry my mom now and send both of the petitions together so she gets to benefit from the 245i?

[@jenniferwalkergates5745]

Hi, Gissy, Children of U.S. Citizens are allowed to marry, but will be moved from the F2B category (for spouses of residents) to the F3 category (for married children of U.S. citizens), which may affect the priority date. When the priority date is current, if your mother meets the other eligibility criteria for adjustment of status and the priority date is current, she may be able to adjust as an “after acquired spouse” at the same time as your father. I hope that helps!

[@jlw.immigrationlaw]

@@gigiEng It's really tough to provide specific information about eligibility for any one person through the KZbin comments - in general, kids must be adopted before age 16 to qualify for immigration benefits. If we can help you dig into the specific facts of your case, we would be happy to do so - just reach out and schedule a consultation with us: walkergatesvela.as.me/WGV.

[@michellelennon4]

What if the couple returns to Mexico after arriving to the us for a family emergency and then comes back? Does that make them ineligible for the 245 that was filed even if they can prove they were here on dec of 2000??

[@jenniferwalkergates5745]

Hi, Unfortunately, if someone triggers the “permanent bar” by leaving and returning without permission after at least one year of unlawfully living in the USA, they become ineligible for adjustment of status even if they otherwise qualify for 245i. If their departure and return occurred before April of 1997, they would be ok - after that date, the permanent bar would apply in the fact scenario you describe.

[@selfpity5155]

​@@jenniferwalkergates5745 I know this is a old video, but I have a question. What happens if your parents (separate at the time) crossed illegally, and crossed before 2001 April 30, but they don't have evidence of it. But my mother had married a guy in Mexico, but then divorced bc he was abusive, then remarried in America (with my father).

[@selfpity5155]

​@@jenniferwalkergates5745is there a way to get them a green card?

[@jlw.immigrationlaw]

@@selfpity5155 Hello, Selfpity, The key date for 245i eligibility is actually December 21, 2000 - applicants must show evidence of physical presence in the USA on or before that date AND have an I-130 petition filed on or before April 30, 2001. Evidence of physical presence may include receipts, pay stubs, mail - even children’s school or medical records can work. Even a very small amount of evidence may suffice. If you would like additional information or assistance, please don't hesitate to contact us.

[@zayabud7836]

What if the beneficiary/spouse had came to the United States at 4 years old under a different name? with no control over the unlawful entry.

[@jenniferwalkergates5745]

Hi, Zaya, 245i generally covers all unlawful entries, but without knowing more about your specific circumstances of entry, I can’t say for sure if you would be eligible.

[@zayabud7836]

@@jenniferwalkergates5745 it was unlawful entry using a different name/visa . The visa has my photo on it but it’s not my name. I entered with it at 4 years old and have been here for 15 years now.

[@jenniferwalkergates5745]

@@zayabud7836 Hi, Zaya, There are court decisions ruling that this is actually a lawful entry, though USCIS may try to make you file a waiver for misrepresentation. Your lawyer will need to help you understand how to grapple with this issue. Hopefully all goes smooth. Best of luck!

[@hernanponce4399]

I have a deportation order and I had my ex wife petion and approved under i245 but since we got divorced. Now my daughter which is a citizen over 21 can she petion me using i245?

[@jenniferwalkergates5745]

Hi, Hernan, Your case is quite a bit more complicated than most because of the deportation order. To be able to answer your question, I would need to know if you left the USA after that order was issued, whether you returned to the USA with or without permission after the deportation, the circumstances or your divorce, etc. I wish I could give you better information, but without a consultation (and possible legal research) it isn’t possible for me to give a reliable answer.

[@cesarcarofelix4096]

What if i have a misdemeanor?

[@jenniferwalkergates5745]

Hello, Cesar, Any immigrant with a criminal conviction should have their case analyzed carefully by a trusted immigration lawyer; some misdemeanors lead to ineligibility for benefits while others don’t. It is important to look at the crime as it is defined by the state where it occurred and compare it to what federal immigration law requires. I wish I could give you a more specific and helpful answer, but I’m afraid each case requires careful analysis.

[@sambasu59]

Do you know if parents qualify for 245i

[@jenniferwalkergates5745]

Hello, Samyukta, If the applicants meet other requirements for adjustment of status under 245i, and are parents of an adult U.S. citizen, then yes, they should qualify.

[@therelaxingmind1241]

245i is Outdated as well as the Green Card Registry is Outdated. Thanks Congress

[@jlw.immigrationlaw]

Hello, Yes, these programs are very old, though occasionally 245i still provides a benefit here and there. Congress has been terribly disappointing on these issues for many years. We desperately need good leadership on immigration.

[@shereenblake6849]

My daughter father filed for her she finished school in America but her father die before her green card comes through can she still get her green card

[@jenniferwalkergates5745]

Hi, Shereen, In general, beneficiaries of immigration petitions can continue in the process if their cases were already filed and they were living in the United States at the time of the petitioner’s death.