Life after entry without inspection (Part 5)

By Alberto Gonzales

Immigration Attorney

(708) 916-3077

Note: This article is not intended to create an attorney-client relationship or to constitute legal advice. This article provides a general overview only and should not be relied upon in lieu of consultation with an immigration attorney.

Twenty years ago, Maria, as an undocumented immigrant from the Philippines, crossed the border into the U.S. from Canada without presenting herself to a U.S. immigration officer. This entry is called “entry without inspection” (EWI). Then, on April 20, 2001, Maria’s U.S. citizen brother filed an I-130 Immigrant Petition for her. Now, Maria has recently married Jose, who is a U.S. lawful permanent resident (“green card” holder). Is there any immigration relief available to Maria?

Adjustment of status (AOS) is the process in which one applies for a green card without leaving the U.S. The alternative to AOS is to apply for an immigrant visa before a U.S. consulate abroad. However, if such person has been unlawfully present in the U.S. for over 180 days, departing the U.S. may cause that person to be barred from returning for many years. Thus, AOS is often the preferred way of obtaining green card status.

According to Section 245(a) of the Immigration and Nationality Act (INA), only a person who has been “inspected and admitted” or “paroled” or a Violence Against Women Act approved self-petitioner may apply for AOS. EWI is not considered being inspected and admitted or paroled. Fortunately, Section 245(i) of the INA allows certain undocumented immigrants, like Maria, to apply for AOS, despite being EWI.

To qualify under Section 245(i), the applicant must: (1) be the beneficiary of an immigrant petition or labor certification (LC), which was filed before May 1, 2001, and which was “approvable when filed”; (2) pay a penalty of $1,000 as part of the AOS application; and (3) have been physically present in the U.S. on December 21, 2000 if the qualifying immigrant petition or LC application was filed after January 14, 1998 and before May 1, 2001.

Furthermore, the applicant, who benefits under Section 245(i), may apply for AOS using a different immigrant petition or LC than the one that conferred Section 245(i) benefits to such applicant.

In Maria’s case, she can apply for AOS through her husband’s immigrant petition, instead of her brother’s petition. However, Maria must wait a few years before she can apply for AOS, as the priority date for her new immigrant preference category as the spouse of a green card holder is not current.

Maria’s undocumented dependents (i.e. her unmarried children under 21 at the time of the filing of her brother’s petition) may also benefit from Section 245(i). Moreover, only Maria, as the principal beneficiary, is required to be physically present in the U.S. on December 21, 2000 for her qualifying dependents to obtain Section 245(i) benefits.

Section 245(i) also permits AOS for those who: (1) entered the U.S. on crewmember visas; or (2) who worked without authorization, who entered via the visa waiver program, or who overstayed their non-immigrant visas and are not immediate relatives of U.S. citizens.

Source consulted: Kurzban, Ira J., Kurzban’s Immigration Law Sourcebook 1266 et seq. (15th ed. 2016).




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