INA § 245(i): A Green Card After Entering Without Inspection

There is a provision in the immigration statute that most people have never heard of, that closed to new filings a generation ago, and that still quietly rescues cases today. It is INA § 245(i). The question that unlocks it is simple.

Did anyone ever file a visa petition or a labor certification for you on or before April 30, 2001? If you have spent years being told there is no path, I know how little another lawyer’s question sounds like good news. Ask this one anyway.

The general rule under INA § 245(a) is that you cannot adjust status inside the United States unless you were inspected and admitted or paroled. If you entered without inspection, that rule ordinarily forces you to leave and interview at a consulate abroad, which can trigger a three or ten year bar on return.

How the exception works

Section 245(i) is the exception. If a qualifying petition or labor certification was filed for you on or before April 30, 2001, you may be grandfathered. There is a second requirement for filings made after January 14, 1998: you must also have been physically present in the United States on December 21, 2000.

If you meet the test, you can adjust status here, in this country, despite the illegal entry, by paying a $1,000 penalty fee with the application. No departure. No bar. No waiver problem.

Two features that surprise people

Two features of 245(i) surprise people. The first is that the petition does not have to have been approved, and it does not have to have been filed by the person who is helping you now.

A labor certification submitted in 2000 by an employer that went out of business 20 years ago can still do the work, as long as it was approvable when filed. The second is that grandfathering can extend to a spouse or a child who held that relationship to you at the time of the qualifying filing. A parent’s old paperwork can carry a whole family.

Where to look for the old filing

So the practical instruction is to go looking. Ask your parents. Ask a former employer. Ask an aunt who once mentioned that someone filed papers for the family in the nineties. Look for old receipt notices, an approval notice, a letter from a law office, or a canceled check to a lawyer or to the immigration service. If you have a family member who once had a case, request their file.

What it does not do

One caution so that nobody overreads this. Section 245(i) solves the entry problem. It does not make you admissible if some other ground applies, and it does not substitute for a currently available visa category. It removes one specific obstacle, and for the right person that obstacle was the only thing in the way.

I ask this question in every intake where entry is an issue. Whether a particular filing qualifies turns on what was filed, when, and whether it was approvable as filed. That is a records question and a legal question, and it can be answered.

This week: Call your parents. Call any employer who ever sponsored anyone in the family. Look for receipt notices, approval notices, letters from a law office, and canceled checks written to a lawyer or to immigration. Request the file of any relative who once had a case.

If anyone in your family ever had immigration paperwork filed in the nineties, bring it in and let me look at it. Call or text 512.761.8479.