Questions and Answers regarding 245(I) and who is "GRANDFATHERED."
BACKGROUND: From October 1, 1994 to January 14, 1998, any alien who had violated the US Immigration laws (for example, being here illegally or working without INS permission) willing to pay a penalty fee (currently $1000) could generally apply for their green card in the United States through a procedure called "adjustment of status." Changes in the law now limit the class of aliens eligible to use this law. Currently, in order to take advantage of Section 245(i) an alien must "grandfathered."
There are two classes of grandfathered aliens. The first class is an alien who is the beneficiary of an INS immigrant visa petition (I-130, I-140, or I-360) filed with the Attorney General or a labor certification filed with the Secretary of Labor on or before January 14, 1998. The second class is an an alien who is the beneficiary of an INS immigrant visa petition filed with the Attorney General or a labor certification filed with the Secretary of Labor on or before April 30, 2001 who can prove that he/she was physically present in the US on December 21, 2000.
This section of the law is extremely important since many aliens who are "unlawfully present" 180 days or more are subject to 3 or 10 year bars from readmission after the date of departure, absent waivers. Therefore, it is important for them to be able to apply for their green card interview in the United States rather than at an Embassy, which would necessitate a departure to attend the interview.
Q. I am a grandfathered alien through labor certification. I just found out that I won the green card lottery. Can I adjust my status or can I only adjust using the "grandfathering" petition?
A. If you win the lottery you can adjust your status. Once grandfathered, you can use any available way to adjust your status. For example, this would include the lottery, another relative petition, or even another labor certification.
Q. I applied for the green card lottery. Does this make me a "grandfathered alien?"
A. No. Green card lottery registration is made to the Department of State. Unfortunately, the law mentions applications and petitions filed with the Attorney General or the Secretary of Labor.
Q. My husband is a grandfathered alien. I was married to him when the company filed the papers for him, but I am getting divorced. As an ex wife, am I still grandfathered?
Q. I am a grandfathered alien. If I get married today to someone who also has children, are they grandfathered?
A. Yes. As long as you are married before your "adjustment of status" is approved, both your new husband or wife and children are also grandfathered.
Q. If the company that files the labor certification on my behalf goes out of business before I obtain my green card, am I still grandfathered?
A. Yes, as long as the application was approvable at the time it was filed.
Q. My mother filed a green card petition for me with the INS in January 2001 and I was physically present in the US on December 21, 2000. She died before the petition was approved. Am I still grandfathered?
A. Yes. As long as it was approvable at the time of filing you are grandfathered.
Q. I am a grandfathered alien. My child was 20 years old when the company filed a labor certification for me. What if my child turns 21 before I am able to adjust. Is my child over the age of 21 still grandfathered?
A. Unfortunately the child will not be able to get the green card with you if the child is over 21 years old. On the bright side, the child is grandfathered and would be able to use Section 245(i) in the future, if necessary.