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245(i)
In general, U.S. immigration laws require applicants for permanent residence to have
been legally admitted to the United States and to be maintaining valid non-immigrant
status at the time of application in order to apply for permanent residence from within
the United States. The spouses, children and parents of U.S. citizens are exempt from the
lawful status requirement as long as they entered the country with a valid visa. All other
applicants for permanent residence must return to their country of origin in order to apply.
Applicants who have been in the United states illegally for 6 to 12 months will be subject to
a three year bar unless they can obtain a waiver based upon a showing of extreme hardship to a
US citizen or permanent residence spouse or parent. Applicants who have been in the United
States illegally for more than one year will be subject to a ten year bar unless they can
obtain a waiver.
The exception to this general rule is Section 245(i) of the Immigration and Nationality Act.
245(i) allows individuals in the U.S. to apply for permanent residence even if they are illegal
and even if they entered the country without a visa. The original 245(i) expired on January 14, 1998.
Congress brought back 245(i) in December, 2000, but required applicants to file prior to April 30, 2001
in order to obtain the benefit of the law. In order to qualify, applicants must to have been physically
present in the country on December 21, 2000 and needed to have an "approvable when filed" application filed
on their behalf by April 30, 2001. USCIS has defined approvable when filed as "meeting all of the applicable
substantive requirements for that filing." Fraudulent applications, or those which have no valid basis in
law or fact are not considered approvable when filed.
Applicants who file pursuant to 245(i) must pay an additional $1000 penalty with their application for
permanent residence unless they are under 18. A 245(i) filing does not protect an applicant from
deportation, and 245(i) does not excuse other violations such as deportations, removals or criminal convictions.
Although 245(i) has expired, we continue to file cases on behalf of countless clients who are
"grand-fathered" by 245(i). "Grand-fathering" allows clients to file a new case, even if their
original case was not approved, as long as the case was filed before the deadline and was
approvable when filed. In some cases, clients are considered grand-fathered even if the
original case was filed for their spouse or parent. Whether a client is grand-fathered
must be evaluated on a case by case basis.
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