• Entered the United States without a valid visa;

• Entered the United States with a valid visa, but overstayed that visa for more than 180 days; and/or

• Engaged in unlawful employment in the United States for more than 180 days.

However, as detailed below, there are limited exceptions to the above rule.

Immigrants who marry United States citizens

Section 245(c) of the Immigration and Nationality Act creates an exception for spouses of United States citizens. Immigrants that marry a United States citizen and who entered the United States with a valid visa, even if they overstayed that visa or engaged in unlawful employment for more than 180 days, are eligible to seek a green card in the United States if petitioned by the United States citizen spouse. No penalty fee is required.

However, immigrants who marry a United States citizen, but who did not enter the United States with a valid visa cannot seek a green card in the United States under this exception.

Immigrants who qualify under section 245(i)

All other ineligible immigrants (not married to United States citizens that entered with a valid visa) need the protection of a law often referred to as 245(i), named after the section in the Immigration and Nationality Act where this law may be found. 245(i) permits immigrants to seek green card applications in the United States, despite entering the United States without a visa, overstaying a visa, or working unlawfully in the United States, in exchange for paying a $1000 penalty fee.

However, the big catch with section 245(i) is that the law expired on April 30, 2001. The only way someone can qualify today under 245(i) is if he can show that he was a beneficiary of a family or employment based petition filed on or before April 30, 2001, when the law was still in existence. Applications for asylum, amnesty or Temporary Protected Status (TPS) filed by April 30, 2001 do not qualify for 245(i) protection.

In order to benefit from 245(i) protection, the petition that was filed by April 30, 2001 (“245(i) petition”) does not have to be the same petition that the immigrant is using today to seek a green card. The Citizenship and Immigration Services has implemented a “grandfathering clause,” in which it will extend 245(i) protection to immigrants who can establish that they were the direct or indirect beneficiaries of a nonfrivolous petition filed by April 30, 2001, even if the green card application is based on a completely different petition.

Depending on when the 245(i) petition was filed, the immigrant may also need to establish that he has been physically present in the United States on or before December 21, 2000.

The four main issues in determining whether an immigrant has 245(i) protection are:

1. Can the immigrant show that a petition was filed on or before April 30, 2001?

2. Was the immigrant a direct or indirect beneficiary of the petition?

3. Was the petition a nonfrivolous petition?

4. Does the immigrant need to establish physical presence in the United States since December 21, 2000?

Proving a petition was filed

The Immigration Service will not take your word that a petition was filed by the deadline. You must prove it. The best proof for family based petitions are receipt or approval notices from the Immigration Service, which list the date the petition was filed. If the petition was sent to the National Visa Center for consular processing, receipts from the NVC may help.

For employment-based petitions, receipts from the Department of Labor or state work force agency where the labor certification application was filed are acceptable.

Because of the length of time that may have passed, these documents may have been lost. Some ways of retrieving copies of these documents may be to contact the attorney, if there was one, who handled the filing and request a copy. In family based cases, another way is to file a Freedom of Information Act request, in which an immigrant or the petitioner requests a copy of his file from the Immigration Service. Although, this request may take up to 18 months. Obtaining documents from the Department of Labor or state work force agency may be much more difficult, as they purged many of these documents.

Beneficiary of a 245(i) petition

To benefit from a 245(i) petition, the immigrant must have been a beneficiary under that petition when it was filed. A direct beneficiary is the person who was petitioned. An indirect beneficiary is a spouse or unmarried child under the age of 21 at the time the 245(i) petition was filed and that 245(i) petition allows the spouse or children to accompany the direct beneficiary. Petitions that allow indirect beneficiaries include employment-based petitions and petitions filed by United States citizens on behalf of their married children over 21, brothers, or sisters.

The fact that the child subsequently turned 21 or the spouse divorced the direct beneficiary after the filing does affect their ability to seek 245(i) protection under that petition. In other words, although the child over 21 or ex-spouse can no longer seek a green card based on that petition because of their age or divorce, the child over 21 or ex-spouse can still use the petition for 245(i) protection with another green card petition.

In addition, children or spouses that did not exist at the time the 245(i) petition was filed can still seek 245(i) protection under that petition, if the child or spouse is seeking a green card with their parent or spouse who has 245(i) protection.

Nonfrivolous

A nonfrivolous petition is a petition that was approvable when filed. This means that if on the day the petition was filed the Immigration Service or Department of Labor could have approved the petition, then it is considered nonfrivolous. The fact that circumstances change after the filing of the petition making the petition no longer approvable is not relevant. Examples of nonfrivolous petitions include a family based petition in which the petitioner or direct beneficiary subsequently dies; a marriage based petition that ends in divorce, but the marriage was entered into in good faith; or an employment petition in which the petitioning company subsequently goes out of business or chooses to no longer pursue the petition.

Physical presence requirement

Some 245(i) petitions require that the principal applicant also show that he was present in the United States on or before December 21, 2000. This physical presence requirement is dependent upon when the 245(i) petition was filed. Only 245(i) petitions filed between January 15, 1998 and April 30, 2001 must meet this requirement. 245(i) petitions filed before January 15, 1998 are not required to meet the physical presence requirement.

If an immigrant must meet the physical presence requirement, then only the principal applicant must establish the physical presence. The dependent family does not need to meet the physical presence requirement. For example, a family has 245(i) protection based upon a family petition filed in April 2001. The husband’s current employer has petitioned him, and the husband, along with his wife and his children, are now seeking green cards based on the employment petition. The husband must show that he has been in the United States since December 21, 2000, but the wife and children are not required to show that they have been in the United States since December 21, 2000 because they are not the principal applicants through the employment petition.

As seen, the Immigration Law is complicated and convoluted. This article can only give an overview and cannot encompass every scenario. As I caution in my articles, immigrants should seek the advise of an experienced immigration attorney prior to filing any petition or application.

Audra R. Behné has a practice dedicated to immigration law and is a member of the American Immigration Lawyers Association and the Los Angeles County Bar Association, Immigration Division. Her main office is located at 14724 Ventura Blvd., 2nd Floor, Sherman Oaks, CA 91403 ● Tel. (818) 881-2155 ● www.audrabehne.com email: audrabehne@aol.com 

This article is for informational purposes only and is not meant to provide legal advice in any specific case. Results may vary depending on the facts of a particular case. We make no prediction, warranty or guarantee about the results of any case, nor do we assume any legal liability for the completeness of any information and its impact on the results of any case. Each case is different and results depend on the facts of each case. Consult with and retain if you need legal advice.