No adjustment of status without section 245(i), even with ‘current’ priority date

Dear Atty. Gurfinkel:

I am out of status, but my employer filed a labor certification for me in 2006. The I-140 petition was approved, and the priority date is now current. I want to file for adjustment of status and get work authorization right away, but am being told I need to wait for an amnesty.

Why can’t I file for adjustment now, since my priority is already current?

Very truly yours,                       

T.S.

Dear T.S.:

Generally, in order for a person to be eligible to file for adjustment of status, the person:

• must be in status;

• is being petitioned as an “immediate relative” by a US citizen spouse, child (if the child is over 21), or parent (if the child is under 21); or

• has the benefit of Section 245(i), if the person is out of status, worked without authorization, entered as a crewman, or entered without inspection (EWI).

In your case, you are out of status and are not being petitioned as an immediate relative. Therefore, for you to file for adjustment of status based on your employer’s petition, you would need to have the benefit of Section 245(i), which expired on April 30, 2001.

Section 245(i) allows people to file for adjustment of status even if they are out of status, worked without authorization, are a crewman or jump ship, or entered the US without inspection, provided the person is eligible under one of the two versions of Section 245(i).

FIRST VERSION OF SECTION 245(i):

— the person was petitioned either by an employer or a family member on or before January 14, 1998.

SECOND VERSION OF SECTION 245(i):

— the person was petitioned either by an employer or a family member between January 15, 1998 and April 30, 2001; and

— the person was “physically present” in the US on December 21, 2000, which was when Section 245(i) was signed into law. (The first version of Section 245(i) does not require the person to be physically present in the US on any particular date. It requires only that he or she was petitioned on or before January 14, 1998.

Also, if a person secured Section 245(i) through a pre-April 2001 filing, they are considered “grandfathered”, and can be petitioned a different way AFTER April 2001, and transfer their 245(i) eligibility to the new filing. For example, their sister petitioned them in 2000, and in 2006 an employer files.  The 245(i) from the sister’s case can be utilized).

Since your employer’s case was filed in 2006, you do not have the benefit of Section 245(i) based on that case. If you file for adjustment of status (because your priority date is current), the USCIS will deny adjustment because you are not eligible, in that you are out of status and do not have the benefit of Section 245(i).

I know of many TNTs who were not aware of this law and thought that because their priority date was current, they can go ahead and file for adjustment, even though their case had been filed after April 30, 2001. Sure enough, adjustment was denied. This is the case whether they were petitioned by an employer or through a family-based petition (other than one as an immediate relative).

If you are under petition (by an employer or family member) and have a current priority date, but are out of status, you may want to seek the advice and guidance of an attorney, who can evaluate your situation and determine if there are other options for you,  notwithstanding your being out of status. But don’t just file for adjustment, without being sure, as you will lose your filing fees, and alert USCIS.

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