What is Section 245(i) regarding immigration? 6 Answers as of February 24, 2011

What is Section 245(i)? If my father has been in the US for 20 years and goes to the interview in Cuidad Juarez he will be barred for 10 years is that my understanding?

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Feldman Feldman & Associates, PC
Feldman Feldman & Associates, PC | Lynne Feldman
What is 245(i)?

Where someone who has been out of status for more than one year and they desire permanent residency, they would normally have to go out of the country to process their paperwork for immigration and would then trigger a ten year penalty before they can return UNLESS THEY QUALIFY FOR A WAIVER. Certain people are not eligible for a waiver so you need to consult with an immigration attorney to carefully evaluate the facts of your case.

245(i) is a wonderful provision that allows the Beneficiary to get permanent residency in the U.S. without going overseas and triggering a ten year penalty and need for a waiver - instead they pay a $1000 penalty fee in addition to their regular fees and stay in the U.S. to process their case. Unfortunately the 245(i) program only applies to person who either directly or indirectly started their case prior to April 30, 2001 when the 245(i) program ended. An example of an indirect benefit might be if your uncle filed a petition for your mother prior to April 30, 2001 when you were still a minor, that case may still be in the waiting line. Now you want to marry a U.S. citizen spouse but you entered the U.S. without documentation. You can file for your own green card in the U.S. through your spouse (even if you may now be over 21), use your Uncle's petition on behalf of your Mom to "grandfather you in" and allow you to use 245(i), process in the U.S. by just paying a penalty fee and not having to risk going overseas, triggering the ten year penalty and hoping your waiver is granted.

If you would like a consultation on the facts of your specific case feel free to contact me as indicated below. I do charge for consultations but whatever you pay for the consultation would then be a credit toward the fees for your case if we are retained for services after the consultation.
Answer Applies to: California
Replied: 2/24/2011
Law Office of Immigration & International Trade Law
Law Office of Immigration & International Trade Law | Linda Liang
Section 245(i) provides relief for people who was beneficiary of an approvable petition prior to April, 1st, 2001 and was in US on Dec. 1st 2000. You need to file petition for 245(i) to apply to your father. Yes, if he gets out of the country, chances are he will be denied. You need for sure a lawyer to represent him. You are welcome to contact us for professional assistance. Good luck!
Answer Applies to: Florida
Replied: 2/6/2011
Law Office of Michael E. Hendrickson
Law Office of Michael E. Hendrickson | Michael E. Hendrickson
245(i) is a provision in U.S. immigration law which allows for a waiver of inadmissibility for individuals who entered the U.S. without inspection(illegally) and can prove that they have resided continuously here in this country since approximately April 2000. And, yes, if your father is an illegal and goes to Mexico to the U.S. consulate for an interview, he most likely would then find himself subject to the 10 year bar.
Answer Applies to: Virginia
Replied: 2/5/2011
Nicastro Piscopo, APLC
Nicastro Piscopo, APLC | Louis M. Piscopo
Section 245(i) is a law that that allowed an individual who was in the US but not eligible to file for adjustment of status to do so by paying a $1000.00. The law expired on April 30, 2001. However, any alien who was a beneficiary (or a derivative beneficiary) of a labor certification application, I-130 or I-140 petition that was filed before April 30, 2001 can still file for adjustment of status now, even if based on another LCA or petition.

In your father's case if a LCA or petition was filed for him or his spouse, or maybe even is parents before April 30, 2001, he may be able to adjust his status.

You are correct, if your father has been unlawfully present in the U.S. for more than one year, if he if he departs the U.S. for an interview at Ciudad Juarez, he will be barred from returning for 10 years.
Answer Applies to: California
Replied: 2/4/2011
Law Office of Christine Troy
Law Office of Christine Troy | Christine Troy
To fully analyze your father's case, it will be necessary for you to do a full consult with a competent immigration attorney. I am happy to meet with you or else call someone else that you prefer. If your father has 245i protection and has eligibility for a green card, he can file in the US instead of leaving the US to visit a US consulate. This will waive an unlawful entry, a visa overstay and working without authorization. He pays DHS an additional $1000 and can obtain his green card in the US. It is a great law and if he is eligible, he does not need to leave!
Answer Applies to: California
Replied: 2/4/2011
    The Vega Law Firm
    The Vega Law Firm | Linda Vega
    Good question. Section 245 of the immigration law allows persons to become permanent residents without leaving the U.S. through a process called "adjustment of status". Generally, persons who entered the U.S. without being inspected by an INS officer, who have ever been unlawfully employed in the U.S. or who failed to always maintain lawful status in the U.S. are barred from adjusting their status in the U.S. (There are certain exceptions to the last two bars for "immediate relatives" of U.S. citizens and for certain EB applicants.) Sec.245(i) was first added to the law in 1994 to allow persons who qualify for green cards, but not for adjustment of status, to be able to adjust their status in the U.S. upon payment of a fine (currently $1,000). Congress phased 245(i) out of the law on January 14, 1998. However, persons who had already qualified under the law as of that date were "grandfathered" into the benefits of Section 245(i) for the rest of their lives.

    The problem was that hundreds of thousands of otherwise qualified persons who missed the January 14, 1998 deadline cannot adjust status in the U.S., and cannot return to their countries to obtain green cards without being subject to either a three or a ten-year bar from returning to the U.S. These persons have been in a state of legal limbo since 1998. Congress gave a holiday present to hundreds of thousands of potential immigrants on December 15, 2000 when they extended the grandfathering date of sec. 245(i) to April 30, 2001. Not only does this extend the benefits of 245(i) to persons who had labor certifications or visa petitions (I-130, I-140 or I-360) filed on their behalf between 1998 and 2000, but it gives persons over four months AFTER the passage of the law to qualify for the benefits of 245(i).
    Answer Applies to: Texas
    Replied: 2/4/2011
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