Grandfathering and Section 245(i)
As most of our readers know, Immigration Law is constantly changing. The programs that are available this year might not be available the next. Additionally, the law that allowed your friend to get his “green card” a certain way in 2000 might no longer have applied to you when you started your case just a year or two later. A prime example of this is Section 245(i) of the Immigration Law, which allows a person to apply for adjustment of status in the United States, without returning to their home country regardless of the fact that they entered without inspection, overstayed, or worked without authorization. These people are allowed to file for adjustment of status based on approved family based petitions or labor certifications by paying a $1000.00 penalty fee.
Why is this so important? Well years ago, it wasn’t. Prior to the birth of the penalty fee, people living in the U.S. illegally and who had found a way to obtain their green cards had to return to their home countries to process through the local U.S. Embassy. (This did not apply to spouses, parents and children under the age of twenty-one years of age who had entered the U.S. legally.) They generally spent a few weeks to a month at home and if their cases were approved, they reentered the U.S. as a lawful permanent resident. When Section 245(i) of the Immigration Law came into law, people had a choice - pay the penalty fee and complete the processing of their cases here or return home and process through the Embassy. However, in 1996 a new Immigration Law was passed that stated that as April 1, 1997, anyone who was unlawfully present in the U.S. for more than 180 days and who left the United States and later sought readmission would be barred for three years. Those who were unlawfully present for more than one year who left and sought to reenter would be barred for ten years. This law effectively eliminated the choice of Embassy/Consular Processing for most immigrants living in the U.S. because once they left .the bars would kick in. Their only choice was to pay the penalty fee and complete the processing of their immigration cases in the U.S.
And so that’s what everyone did. In January of 1998, Section 245(i) expired, but was later signed back into life for a brief time by President Clinton in 2000 as part of the LIFE Act. Under that provision, anyone who had been physically present in the United States on December 21, 2000 and who had filed a petition or labor certification application prior to April 30, 2001, would be eligible to pay the penalty fee when timely so that they could file for adjustment of status in the United States. Those who started a case on May 1, 2001 or after were out of luck and could not get their green cards in the United States unless the penalty fee provision was renewed sometime in the future.
The exception to this rule has to do with what is called a ‘Grandfather clause.” (A grandfather clause is the term that is used when certain people are exempt from new regulations and which allow them to continue under the “old law”.) In this case, the Immigration Service stated that even though certain people started their cases after the expiration date of Section 245(i), (April 30, 2001), they would still be allowed to pay the penalty fee and file for adjustment of status in the United States. Who were these people who were “grandfathered” under the old law? Anyone who had a prior petition, or labor certification filed prior to April 20, 2001 that was approvable when filed. What does this mean? Well for example, let’s say back in 1999, your employers filed for you as a live-in-housekeeper but you wound up discontinuing that case as they moved to a different state. A few years later in 2002, your new employer decided to file for you and this time everything worked out and your labor certification was approved. However, as it was filed after the deadline of April 30, 2001, are you now ineligible to pay the penalty fee and file to adjust your status? No, you can use your old case that was discontinued to “grandfather” you in under the old law, which then allows you to pay the penalty fee and file for adjustment of status based on your new case. It is not necessary for the cases to both be similarly based either. You can use a family based petition where you are the beneficiary or in some cases, where your parent was the beneficiary and you were considered eligible for derivative immigration status as their child.
The Service does however; require that the petition be “approvable when filed”. This means that the petition or Labor Certification Application was properly and timely filed, was meritorious in fact and non-frivolous. The Service will look at the circumstances that existed at the time of the original filing. So, even if your original petition and/or labor certification application is no longer approvable because circumstances have changed, i.e.; you no longer work for that employer or you are divorced from your original petitioner spouse, if it was approvable at the time, it will still work to allow you to adjust your status in the United States based on a new sponsorship.