Green Card Application: Unlawful Entry and INA Section 245(i)

My name is Rod Armande and I am an immigration and personal injury attorney based out of Los Angeles, California. One of my primary focuses in immigration law are green card applications. I am writing this blog to highlight the ability of INA Section 245(i) to excuse a noncitizens unlawful entry into the United States allowing them to adjust status in the United States.

I’ve found through the last eight years of studying and practicing immigration law as a paralegal, student attorney, and licensed attorney that United States citizens (“USC”) or legal permanent residents (“LPR”) who want to file a family petition for an immediate relative (parent, spouse, child, or sibling) need to weigh processing an immigrant petition via consular processing abroad or through adjusting status in the United States. The USC or LPR family member is classified as the petitioner and the noncitizen immediate relative is classified as the beneficiary for purposes of a family petition (also known as Form I-130, Petition for Alien Relative). For beneficiaries living outside the United States, this is a non-issue, but for the many people living in the United States who are eligible to adjust, it’s not always an easy choice. There are advantages and disadvantages to both options, which could be the subject of a future blog post.

For the purposes of this blog post, I want to emphasize that adjusting status in the United States (filing a green card application to obtain permanent residency) is possible for immediate relatives who have immigration status violations. An unlawful entry is considered a violation that can’t be excused. Therefore, the beneficiary would not be able to adjust status in the United States. However, if the beneficiary is “grandfathered” under a prior petition or labor certification previously filed for them, their spouse (while they were married to the spouse), or parent (while they were under the age of 21 years old, and therefore, included as a derivative) with a priority date on or before April 30, 2001 they can adjust status in the United States. Similarly, overstays and various other immigration violations can be forgiven. This blog post will focus on overcoming the unlawful entry violation by way of Section 245(i) of the Immigration and Nationality Act (“INA”). To be clear, an unlawful entry violation means that the beneficiary (noncitizen immediate relative) failed to be inspected and admitted by an immigration official when they last entered the country.

I conduct several strategy sessions with potential clients where I’m regrettably unable to help them find a legal pathway to obtain permanent residency in the United States. There are countless parents, brothers, sisters, and even children who have an immediate relative who is a United States citizen (“USC”) or legal permanent resident (“LPR”) but do not have legal status in the United States (and have no meaningful pathway to obtaining legal status in the United States). These noncitizens were never arrested nor convicted of any crimes (and if they have it was for a minor offense from several years ago). They often have raised families, been a positive part of their community, and paid their taxes for decades in the United States. One of the most common scenarios I come across in my strategy sessions is a USC son or daughter who has turned 21 years old and wants to file a family petition for their parent. Of course, a child above 21 years old who is a USC may file a petition for their immigrant parent and I encourage them to file the family petition as soon as possible.

However, the immigrant parent of the USC son or daughter entered the United States without inspection several years ago – often before the USC son or daughter were even born – and never left the United States since this unlawful entry into the United States. The fact that the parent entered without inspection and admission often means that even though the USC son or daughter may file the family petition for their parent, the parent will not be eligible to receive a green card. I have to tell the son or daughter that filing the I-130 petition has the risk of providing immigration agencies certain information about the undocumented parent such as their current address and employer information, but it also has the potential benefit of providing the ineligible parent a pathway to obtaining a green card in the future should the laws change in a way that would favor them for having a previously filed family petition. This potential benefit is not that far-fetched of a possibility given that this is exactly what happened approximately 23 years ago when Congress enacted Section 245(i) of the INA.

INA Section 245(i) allows certain persons to adjust status in the United States notwithstanding the fact that they entered without inspection, overstayed, or worked without authorization. Under INA Section 245(i), a person who entered the United States without inspection or admission, or is within one of the classes of INA Section 245(c) (this is for crewman) can adjust status if a properly filed petition or labor certification was filed for them, their spouse (while they were still married), or their parent (while they were under the age of 21 years old), the petition or labor certification was approvable when filed, and they pay a special fee of $1,000. This is known as being “grandfathered” under INA Section 245(i). A person is “grandfathered” under Section 245(i) if: (1) she is the beneficiary of a labor certification or visa petition that was filed on or before January 14, 1998; or (2) she is the beneficiary of a labor certification or visa petition that was filed after January 14, 1998 but on or before April 30, 2001, and he or she was physically present in the U.S. on December 21, 2000.

The most common issue I run into – among all the other issues that may arise – is that the parent who is living in the United States were never admitted or inspected when they last entered the United States. Therefore, they do not qualify for adjustment of status under Section 245 of the INA and are unable to adjust status to a permanent resident inside the United States. They often do not have a qualifying relative to file an unlawful presence waiver to excuse the fact that the last time they entered the United States was without inspection and admission. A qualifying relative for the waiver is a USC parent or spouse, or LPR parent or spouse. Therefore, they can not file this waiver and upon approval pursue consular process at a U.S. embassy in their home country or another third country where a U.S. embassy is located. *This blog is not intended to go into depth on the use of or requirements for waivers nor the alternative option of consular process. There are several types of waivers for several different types of issues that may arise in a noncitizens application for a green card.* To ensure you do not have any of these issues present in your case it is it is important to hire an experienced attorney for your immigration needs!

For more information on Marriage Based Lawful Permanent Residency see my article by clicking on the following link: https://www.rodarmandelaw.com/blog/immigration-lawyers-guide-to-marriage-based-green-cards. 

One important question often overlooked by practitioners is whether another USC, LPR, or employer filed a petition or labor certification for them, their parent or spouse with a priority date of April 30, 2001 or earlier. If the answer is yes, then most of the time you may file the adjustment of status application (green card application) under Section 245(i) of the INA. In other words, the existence of the prior petition or labor certification – with a priority date of April 30, 2001 or sooner – that was filed for the parent, the parent’s parent, or the parent’s spouse will excuse the fact that the last time the parent entered the United States was without being inspected and admitted. There are exceptions and specific rules that need to be looked into such as whether the previously filed petition or labor certification was fraudulent, approval at the time of filing, or the parent was considered a derivative of the petition or labor certification that was previously filed for their parent or spouse, and whether the primary beneficiary was physically present in the United States on December 21, 2000.

I am not going to elaborate on these rules in this blog. Rather, I would like to bring more awareness to the fact that someone’s entry without inspection and admission can be overcome if there was a petition or labor certification previously filed for them, their parent, or spouse that has a priority date of April 30, 2001 or sooner. So make sure to ask this question and if they aren’t sure then they should speak to their parents, spouse (or former spouse if now divorced) to see if they qualify for adjustment of status under Section 245(i) of the INA. If they still aren’t sure but are confident that a petition or labor certification was previously filed then it is a good idea to file a request for more information from immigration agencies by filing a Freedom of Information Act (“FOIA”), which often discloses the existence of these previously filed petitions or labor certifications.

The content in this blog is for informational purposes only. Nothing stated herein should be construed as legal advice. It is for general purposes only and does not establish an attorney-client relationship. I strongly encourage you to seek legal counsel to assist you with your legal matter.