The Ninth Circuit reversed the Board of Immigration Appeals’ denial of the petitioner’s adjustment of status application, finding that the petitioner reasonably relied on Acosta v. Gonzales, which was the law of the circuit in effect at the time he applied to adjust status, but which was later overruled by Garfias-Rodriguez v. Holder. The court held that the BIA’s decision in Matter of Briones should not be applied retroactively to bar the petitioner’s application, because the petitioner’s reliance interests and the burden that retroactivity would impose on him outweighed the interest in uniform application of the immigration laws.
Question: I have heard a great deal of 245(i) and how people who are here illegally can still adjust status in order to obtain Lawful Permanent Residency. I can’t figure out who is under 245(i) and who is not. Can you explain?
Answer: In general, 245(i) allows someone who filed either a Labor Certification or a family based petition prior to April 30, 2001. They would pay $1,000 fine and then they can apply for adjustment of status.
Question: What if my sister applied for me and it will take another 12 years for the visa number to become current? Can I fall under 245(i) with another application?
Answer: Yes, 245(i) is ‘grandfathered’ and can be transferred to another quicker application (like PERM) and still be eligible under 245(i).
Question: What if the adjustment application is denied? Can I file another application and still be under 245(i)?
Answer: Yes. Regardless of how many applications you have, you can keep paying the $1,000 penalty fee along with the normal application fees until an adjustment application is approved.
Question: How about dependants of the person who qualifies for adjustment of status? Who exactly qualifies?
Answer: If the relationship existed at the time the application was filed, the spouse and children are grandfathered. This means that even if there is a divorce or the child becomes older than 21 years of age, they are still grandfathered.
However, if the relationship with the principal did not exist until after April 30, 2001, then the dependants do not independently qualify under 245(i), but rather, must apply with the principal alien. In other words, they are under 245(i) as long as the relationship still exists with the principal person.
If the principal person applied for adjustment of status and then gets married or has another dependant, that person cannot then apply for adjustment of status under 245(i).
Thus, whether you are grandfathered under 245(i) is of critical importance as to whether you can eventually apply for lawful permanent residency. Therefore, you need to be very careful in determining whether you qualify under the above referenced rules.