ADJUSTMENT OF STATUS TO PERMANENT RESIDENCE, 245(i),
K & V Visas.
Adjustment of status refers to the procedure for becoming a lawful
permanent resident without having to leave the United States. An alien
who was inspected and admitted or paroled into the United States may be
adjusted by the Attorney General, in his discretion and under such
regulations as he may prescribe, to that of an alien lawfully admitted
for permanent residence if:
1. the alien makes an application for such adjustment,
2. the alien is eligible to receive an immigrant visa and is
to the United States for permanent residence,
3. and an immigrant visa is immediately available to him at
the time his
application is filed.
- 8 CFR 245.1:
Adjustment of Status to Person Admitted for Permanent Residence;
- 8 CFR 245.10:
Adjustment of Status upon payment of additional $1000 fee under
- Adjustment of status under section 245(i), as amended by the Legal Immigration Family Equity Act Amendments of 2000, JAN 26, 2001 INS memo;
- Accepting Applications
for Adjustment of Status Under Section 245(i), JUNE
10, 1999 INS MEMO
- TEXT OF LAW-("LIFE"):
Legal Immigration and Family Equity Act;
- THE EXTENSION OF SECTION 245(i): FREQUENTLY
ASKED QUESTIONS (Provided by the American Immigration
Lawyers Association) December 21, 2000;
- INS Issues INTERIM
FINAL REGULATION ON 245 (i), March 20, 2001;
- DIEZ PREGUNTAS Y RESPUESTAS
SOBRE LA NUEVA 245(i): American Immigration Lawyers
Association, Jose Pertierra, Abogado Especializado en Casos
- NEW V VISA AND THE
NEW K VISA RULES: January 12, 2000 Prepared by Prof.
CFR 245.1: The
following categories of aliens are ineligible to apply for
adjustment of status to that of a lawful permanent resident alien
section 245 of the Act, unless the alien establishes eligibility
the provisions of section
245(i) of the Act and § 245.10,
included in the categories of aliens prohibited from applying
adjustment of status listed in § 245.1(c), is eligible to
immigrant visa, and has an immigrant visa immediately available
time of filing the application for adjustment of status:
- Foreign National Crewmen
Those who, at the time of arrival, were serving in any capacity
a vessel or aircraft or were destined to join a vessel or aircraft
the United States to serve in such a capacity are barred from adjustment
- Transits Without Visas ("TWOV")
Aliens who are in immediate and continuous transit through
States to a foreign destination, in accordance with the terms
agreement entered into between the transportation line and
the INS, are
not eligible for adjustment of status.
- Aliens Who Entered Under Visa Waivers
An alien (other than an immediate relative) who was admitted
nonimmigrant visitor without a visa under section 212(l)
for B-1/B-2 admission to Guam] or section 217 [visa waiver
program] is barred from adjustment of status.
- Unauthorized Employment, Unlawful Status or Failure to Maintain
Aliens who have engaged in unauthorized employment, who are
lawful status at the time of filing of the adjustment application
have failed to continuously maintain status since their entry
United States are barred from adjustment of status. However,
statutory bar does not apply to immediate relatives of United
citizens or certain special immigrants.
Without Section 245(i), most persons who entered
the U.S. without
inspection, overstayed an admission, acted in violation of the
their status, worked without authorization, entered as a crewman,
were admitted in transit without a visa would not have been eligible
adjust status in the U.S. If an individual is eligible for permanent
residence, but not eligible for adjustment of status, that person
still obtain permanent residence by leaving the U.S. and completing
process for an immigrant visa at a U.S. consulate abroad. However,
that individual had been unlawfully present in the U.S. for more
180 days, he or she would be barred from reentering the U.S. for
least 3 years, and perhaps as long as 10 years if unlawful presence
more than one year. Under Section 245(i), an eligible individual
remain in the U.S. to obtain permanent residence through adjustment
status, and thus never trigger these entry bars. (Once permanent
residence is obtained, these entry bars no longer apply.)
Section 245(i) of the Immigration and Nationality Act become temporarily
available to illegal immigrants present in the United States on the date
of the enactment, December 21, 2000. Under the provision, a person
who--if it weren't for their illegal status--would qualify to immigrate
(such as the spouse of a US citizen), may adjust status after payment of
a $1000 fine is made, and providing the petition is “properly filed”
prior to April 30, 2001. For many people with status violations, leaving
the U.S. means they are subject to a three to ten year reentry bar.
In order to take advantage of the 245(i) grandfathering, individuals
must have an immigrant visa petition or a labor certification
application on file with the Immigration Service or Department
by April 30, 2001. The "grandfather"clause of Section
245(i) is extended
from January 14, 1998 until April 30, 2001. As a result, any beneficiary
of an immigrant visa petition or labor certification application
BEFORE April 30, 2001, (including a spouse or child of the alien
beneficiary if eligible to receive a visa under section 203(d)
Act) will be able to apply for adjustment of status under Section
if necessary. If the qualifying visa petition or application for
certification was filed AFTER January 14, 1998, the alien must
physically present in the United States on December 21, 2000. This
requirement does NOT apply with respect to a spouse or child
accompanying or following to join a principal alien.
Another good feature is that there is no requirement that the person
adjust status in the same preference category that they were petitioned
for. In addition, once you qualify for benefits under Sec. 245(i), your
eligibility never expires.
Individuals wishing to file under the new grandfather date also must
show that they are physically present in the United States on the day
the bill was signed by the President, 12/21/2000. (The physical presence
requirement does not apply to 245(i) filings for individuals with
pre-January 14, 1998 priority dates.) There is no requirement that you
be in the U.S. lawfully, only that you be physically present in the US
when the law is signed. This requirement does NOT apply with respect to
a spouse or child accompanying or following to join a principal alien.
This means that you must have either an employer or a relative
application for labor certification or a visa petition on your
April 30, 2001. In other words, you need a U.S. citizen parent, spouse,
adult child, or adult brother or sister; or a lawful permanent
spouse or parent (if you are single); or a US employer that desires
services; to file a petition on your behalf before 4/30/01. It
necessary that the Labor Department or the INS approve your application
or petition by that date, only that it be filed. Also, even if
petition or application is never approved, ultimately denied, or
withdrawn, as long as it was "approvable when filed" you
are entitled to
the benefits of Sec. 245(i). However, applications or petitions
deficient because they were submitted without the proper fee, or
they were fraudulent, or without any basis in law or fact, are
considered to be "approvable when filed" and confer no
GRANDFATHERED DERIVATIVE FAMILY MEMBERS
Grandfathered children and spouses: Accepting Applications for Adjustment of Status Under Section 245(i) of the Immigration and Nationality Act, 06/10/1999 INS memo
Section 245(i) defines the term "beneficiary" to include a spouse or
child "eligible to receive a visa under section 203(d) of the Act." This
applies to spouses or children "accompanying or following to join" the
An alien who is accompanying or following to join an alien who is a
grandfathered alien is thus also the "beneficiary" of the grandfathered
petition or labor certification application and is also grandfathered.
Since an alien's ability to characterize himself or herself as
"accompanying or following to join" the principal alien depends on the
existence of a qualifying relationship at the time of the principal's
adjustment, adjudicators must determine whether the relationship existed
prior to the time the alien adjusted status. Officers should remember
that the burden of proof to establish the qualifying relationship rests
with the applicant.
The spouse or child of a grandfathered alien as of January 14 is also
grandfathered for 245(i) purposes. This means that the spouse or child
is grandfathered irrespective of whether the spouse or child adjusts
with the principal. The pre-January 15 spouse or child also are
grandfathered even after losing the status of spouse or child, such as
by divorce or by becoming 21 years of age, by the petitioner’s
naturalization, through the parents’ divorce, or even if the principal
or petitioner dies. Grandfathered eligibility attaches to the person and
not the petition. Many aliens with pending, grandfathered petitions or
labor certification applications will marry or have children after the
qualifying petition or application was filed but before adjustment of
status. These "after-acquired" children and spouses are allowed to
adjust under 245(i) as long as they acquire the status of a spouse or
child before the principal alien ultimately adjusts status.
An alien who becomes the child or spouse of a grandfathered alien
after the alien adjusts status or immigrates cannot adjust status under
section 245(i) unless he or she has an independent basis for
Often, a principal alien who has filed a visa petition or labor
certification application will have a "child" who reaches the age of 21,
and thus no longer meet the statutory definition of child, before the
petition or application is approved or the principal alien adjusts
status. However, such an "aged-out" beneficiary will remain a
beneficiary for the purpose of determining whether he or she may use
section 245(i) to adjust status.
Eligibility: An alien who is included in the categories of
restricted aliens under 245.1(b) and meets the definition
``grandfathered alien'' may apply for adjustment of status under
245 of the Act if the alien meets the requirements of paragraphs
through (b)(7) of this section:
(1) Is physically present in the United States;
(2) Is eligible for immigrant classification and has an immigrant
number immediately available at the time of filing for adjustment
(3) Is not inadmissible from the United States under any provision
section 212 of the Act, or all grounds for inadmissibility have
(4) Properly files Form I-485, Application to Register Permanent
Residence or Adjust Status on or after October 1, 1994, with the
required fee for that application;
(5) Properly files Supplement A to Form I-485 on or after October
(6) Pays an additional sum of $1,000, unless payment of the additional
sum is not required under section 245(i) of the Act; and
(7) Will adjust status under section 245 of the Act to that of
permanent resident of the United States on or after October 1,
The New"V" Visa: TEMPORARY VISA
FOR SPOUSES AND MINOR CHILDREN OF LEGAL PERMANENT RESIDENTS AWAITING
AN IMMIGRANT VISA :
INS Issues V Regulation
(September 7, 2001, PDF)
The LIFE Act creates a new temporary visa, a "V'
visa, that would allow the spouses and minor children of lawful
permanent residents ("green card" holders) who are waiting
their turn in the visa quota backlog line to enter the United States
and be granted work authorization. They would be able to apply
the visa without leaving the US, and they would be eligible for
the visas even if they entered the US without authorization or
a visa. Formerly, spouses and minor children of legal permanent
residents have had to wait four or five years out of the country
and unable to visit their spouse or parent while waiting for green
card priority dates to become current. (Currently they are prevented
from getting a visitor visa because they are intending immigrants).
Allows the spouses and minor children of lawful
permanent residents (the Family 2A category only) who have been
waiting more than 3 years for a green card, to enter the United
States and be granted work authorization. To qualify the spouse
or child must meet the following criteria:
(1) A green card petition was filed on or before
enactment of the law. The sponsoring permanent resident must already
have filed a green card petition for the spouse or minor child with
the INS on the date that the LIFE Act becomes law.
(2) Must have been waiting at least 3 years. The
petition must either have been pending with the INS for three years
or more or, if the petition has been approved, the spouse or minor
child must have been waiting at least three years for their 'turn" in
the green card line.
(3) Waiver of Grounds of Inadmissibility and Adjustment
of Status. The law provides that periods in the United States in
unauthorized status will not prevent someone from getting a V visa
(Sec. 212(a)(9)(B) shall not apply) The law also would allow individuals
already in the United States to apply to "adjust status" to
the new V category, even if they are in the United States unlawfully
(Sec. 212(a)(6)(A), (7), and (9)(B) shall not apply). With the
of Section 245(i), V visa holders will be eligible to adjust their
status to legal permanent resident under that section.
These individuals may later apply to adjust status
to permanent residence based on their sponsor's petition by paying
a $1000 fee, as long as they were physically present in the United
States between July 1 and October 1, 2000.
The "V" visa also would protect people
from deportation, grant work authorization, and would allow adjustment
for certain spouses and minor children who reside in this country
and who are out of status. These benefits, directed to people who
are out of status, are granted only to certain spouses and minor
children of legal permanent residents; others are not granted these
benefits, which go beyond that offered by a restored Section 245(i).
Because Section 245(i) grants eligible people only the potential
to adjust when they become eligible, but grants no legal status
until then, the restoration of this much-needed provision would
grant more people a lesser benefit. Further, it appears that the
"V" visa is available only to those certain spouses and
minor children who are in this country from July 1, 2000 to October
Spousal reunification provision/expanded
INS Issues Interim
K-3/K-4 Regulation (August 14, 2001, PDF)
This new visa, a variation on existing "K" status,
would cover spouses of US citizens and their children who are living
abroad. By expanding the eligibility for a K visa, the new law
allow the spouse of a U.S. citizen to enter the United States and
obtain work authorization while waiting for the petition to be
The current K visa allows fiancees of US citizens to come
to the US for marriage, and to work while awaiting the marriage.
Spouses usually have to wait for up to a year to join their American
wife or husband, and permission to visit meanwhile is rare. Spouses
approved for the new K visa would be granted temporary work authorization.
The bill provides that this new K status is available both to individuals
with currently pending green card petitions and future applicants.
Any minor children who are accompanying the spouse
can be included in the petition. In order to qualify the spouse
and minor children must meet the following criteria:
(1) An immigrant visa petition must be previously
filed. The law requires that the U.S. citizen file an immigrant
petition before a visa can be issued to the spouse abroad. The K
visa will allow the spouse abroad to enter the U.S. and await the
approval of the petition.
(2) Recipient of the K visa must be outside of
the United States. The law only authorizes the visa to be issued
by a consular officer outside of the United States. There is no
provision to "adjust status" for someone already in the
United States in an unlawful status.
(3) The K visa petition must be filed in the United
States by the U.S. citizen spouse.
(4) Must have a valid non-immigrant visa at the
time that the K visa is issued. Where the marriage to the U.S. citizen
occurred outside of the United States, the K visa recipient must
have a valid non-immigrant visa issued by the consulate where the
ADJUSTMENT OF STATUS OF CERTAIN LATE LEGALIZATION
To qualify a person must prove that he or she:
(1) Filed a written claim, before October 1, 2000,
for class membership in CSS v. Meese, LULAC v. Reno, or INS
v. Zambrano (three of the various class action lawsuits filed
against the INS for their improper handling of the 1986 amnesty
(2) Entered the United States before January 1,
1982 and resided continuously in the United States in an unlawful
status through May 4, 1988.
(3) Was continuously physically
present in the United Sates beginning on November 6, 1986 and ending
on May 4, 1988 (brief, casual and innocent absences will not interrupt
a finding of continuous physical presence).
(4) Files an application
for adjustment of status with the Attorney General within one year
of the date on which the Attorney General issues final regulations
to implement the new law. The Attorney General is required to issue
those regulations within 120 days after enactment.
(4) Has not been convicted of any felony or three
or more misdemeanors, has not assisted in the persecution of any
person (on account of race, religion, nationality, political opinion
or membership in a particular social group), and is registered or
registering under the Military Selective Service Act (if required
to do so under that Act).
(4) Is not inadmissible to the United States as
an immigrant. The Attorney General may (for humanitarian purposes,
to assure family unity, or when it is in the public interest) waive
any of the grounds of inadmissibility except those relating to criminals,
drug offenses, security grounds, and public charge grounds. In addition,
the Attorney General may grant a waiver of the grounds of inadmissibility
related to aliens seeking admission after previous removal and aliens
present after previous immigration violations.
(4) Is able to pass the
naturalization exam (relating to an understanding of basic civics
and the ability speak, read, and write ordinary English), or show
that they are satisfactorily pursuing a course of study (recognized
by the Attorney General) to achieve such an understanding of English
Relief Granted Under the Law:
Eligible applicants will apply directly for permanent
residence, rather than for temporary resident status.
* The Attorney General is required to establish
a process under which an alien who has become eligible to apply
for adjustment of status as a result of the enactment of this law
and who is not physically present in the United States may apply
for such adjustment from outside of the country.
* Applicants who submit a prima facie application
under this law are entitled to a stay of deportation, work authorization,
and permission to travel while their application is pending.
* The limitation on judicial review under IIRAIRA
(Section 377) will not apply to applicants under these modifications
and they will be entitled to the same review allowed by the 1986
* Newly legalized persons will not be disqualified
from receiving certain public welfare assistance. (Under the original
Section 245A applicants were disqualified from certain assistance
for 5 years after their application was filed). However, they may
still be subject to restrictions bases on the 1996 Welfare Reform
* The confidentiality provisions of Section 245A
(that generally prevent the information submitted on the application
from being used for any purposes except criminal prosecution) will
apply, except that information submitted by an applicant under the
new law may be used in proceedings to rescind an adjustment of status.
GRANTS PROTECTION FROM DEPORTATION AND WORK
AUTHORIZATION TO THE SPOUSES AND CHILDREN OF LATE LEGALIZATION APPLICANTS
Consistent with laws passed in 1990 to protect
the family of legalization applicants who were already in the United
States, the LIFE Act prevents the deportation of the spouses and
minor children of a person who is applying for late legalization
under the new law. Also consistent with prior laws, these family
members are eligible for work authorization.
To be eligible for benefits a person must prove
that he or she is:
* The spouse or unmarried child of a person who
is eligible for adjustment of status as a result of the late legalization
provisions of the LIFE Act.
* Entered the United States before December 1,
1998 and resided in the United States on that date.
* Has not been convicted of a felony or three or
more misdemeanors in the United States, has not assisted in the
persecution of any person (on account of race, religion, nationality,
political opinion or membership in a particular social group), or
is otherwise not a danger to the community of the United States.
Relief Granted Under the Law.
* Eligible people will be protected from deportation
for violations of status in the United States but will continue
to be deportable for other grounds of deportation, including criminal
* Eligible people will be entitled to work authorization
in the United States.
* If the applicant for benefits under the late
legalization provisions of the LIFE Act is applying from outside
of the United States, the Attorney General is required to establish
a process by which eligible spouses and children may be paroled
into the United States in order to obtain the benefits under the
PROVIDES CERTAIN WAIVERS AND PROTECTIONS
AGAINST DEPORTATION FOR APPLICANTS UNDER NACARA AND HRIFA
Waiver of certain grounds of inadmissibility: In
applications for adjustment of status under NACARA and HRIFA, the
Attorney General may waive certain grounds of inadmissibility relating
to re-entry after a previous order of deportation or removal (Sec.
212(a)(9)(A) and (C)O.
Section 245(i) Update
May 9, 2002
Senator Tom Daschle (D-SD), the Senate Majority leader, introduced
Uniting Families Act of 2002 that extends Section 245(i). Under Senator
Daschles proposal, the filing deadline would be extended until April
30, 2003, and people still would have to prove physical presence in
the US on December 21, 2000.
Unlike the House bill, this extension does not include any date
which someone would have had to have established a relationship or filed
a labor certification in order to qualify. The bill does state that
persons are ineligible for Section 245(i) based on marriage fraud and
security and related grounds.
The House passed a more restrictive extension of Section 245(i)
includes a requirement that the family relationship, or a labor
certification application, must have been filed by August 15, 2001.
March 12, 2002: The House of Representatives approved an extension
Section 245(i) by a vote of 275 to 137.
- It will extend Section 245(i) until November 30, 2002, or four months
after the INS issues regulations implementing the law, whichever is
- Eligibility for Section 245(i) must be established prior to August 15,
2001. For people who are submitting a family-based application, the
provision would require that the familial relationship that is the
basis of the application existed before August 15, 2001. For
who are submitting an employment-based application, they would have to
prove that a labor certification was submitted prior to August 15, 2001.
- The Senate must now vote on similar legislation before it can be sent to
the President for his signature. As of yet, it is unclear whether the
Senate will vote on this bill, or will draft a bill of its own.
Extension Update, 09/06/01 : S.
778 | H.R.
The Senate and House have agreed on a compromise measure to extend section
245(i). It appears that, under the compromise, many immigrant petitions
filed before either April 30, 2002 or four months after regulations are issued
(it is not clear whether it is the earlier or the later of these two dates)
would form the basis for 245(i) eligibility. However, there are some
For family cases, the family relationship must have existed before August
15, 2001. In essence, this means that the 245(i) extension would not
be applicable to marriage-based petitions where the marriage was not entered
into before last month.
Similarly, for employment cases based on labor certifications, the labor
certification application must have been filed by August 15, 2001. This
means that the 245(i) extension would not be applicable to new labor certification
applications not filed before last month.
However, the extension would be applicable to employment-based petitions
that do not require a labor certification. The compromise deleted an earlier
provision that would have required, for employment-based cases, that the
employment relationship have existed prior to April 30, 2001. This
provision was retroactive in effect, and thus would have effectively cancelled
245(i) eligibility for a large percentage of the labor certification applications
filed before the last 245(i) deadline. That provision is no longer
in the bill. Also, the date by which the family relationship must have
been entered into was moved in the compromise from April 30, 2001 to August
President Bush is expected to sign the bill once all the details are worked