CASE:  I-485 Adjustment of Status under the INA 245(i) provision
CLIENT: Chinese
LOCATION: Cleveland, OH

Our client is from Hong Kong, China, who came to the U.S. without inspection and admission in August 2001. He never left the United States since he came.

In March 1990, our client’s uncle filed an I-130 (fourth preference) petition for his mother.  This I-130 petition was approved in April 1990.  At the time the I-130 Petition was approved, our client was a minor and was a derivative beneficiary. Later, our client’s father filed an I-130 petition on behalf of our client in March 2003.  This Petition was approved in June 2005.

Our client contacted us in February of 2012 for consultation. We determined that he is eligible for adjustment of status under INA 245(i). Our client retained us on March 1, 2012.

Section 245(i) of the INA allows certain foreign nationals to become permanent residents of the United States despite entering without inspection (EWI) or overstaying (if beneficiary of petitions filed not by an immediate relative). Immigrants are barred from adjusting their status if they entered the United States without first being inspected and admitted by a Customs and Border Patrol officer and if they have either failed to maintain lawful status or been unlawfully employed in the country, with certain exceptions. Section 245(i) was first added to law in 1994 to allow certain people who otherwise would not be eligible to adjust their status to be able to do so upon payment of a $1,000 fine.

Four years later, on January 14, 1998, Congress phased Section 245(i) out of law. Immigrants and their families who had already began the process of changing their status under Section 245(i) by January 14, 1998 were grandfathered into the section’s benefits. However, this left thousands of otherwise qualified persons who had not begun the process unable to adjust status in the United States. They could not return to their countries to begin the legal process of obtaining their permanent residency in the United States also without being subject to either a three- or a 10-year bar upon returning to the United States.

On December 21, 2000, Congress extended the qualifying date for Section 245(i) benefits to April 30, 2001. This law allowed immigrants who had labor certifications or visa petitions filed on their behalf between 1998 and April 30, 2001, to qualify for adjustment of status. Those who were beneficiaries of petitions filed prior to January 14, 1998 could still adjust despite an EWI record, and those people do not have to meet the December 2000 physical presence requirement.

Our client was the beneficiary of his father’s petition in March 2003, which is current, but this by itself would not have allowed him to adjust status since this was filed after January 1998 and because he came in 2001, thus not meeting the December 21, 2000 physical presence requirement. However, he was also the beneficiary of a petition filed before January 14, 1998, that of his uncle’s petition for his mother. So it was the two petitions that saved his case, one for 245i, and the other for adjustment eligibility.

Once retained, our office prepared and filed his adjustment of status application under the 245(i) provision. Everything went smoothly and the receipt notices and fingerprint appointment all came on time.  We thoroughly prepared our client prior to his interview.  On June 8, 2012, our client was interviewed at the Cleveland USCIS office. Attorney Sung Hee (Glen) Yu accompanied him at the interview as well. Due to the complexity of the case, we made sure the officer was clear about our client’s 245i eligibility. On the same day, our client’s I-485 application was approved.  He finally became a green card holder.

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CASE: Termination of Removal Proceedings with an Approved I-130 Petition / I-485 under the INA 245(i) provision
CLIENT: St. Lucian
LOCATION: New York, NY

Our client is from St. Lucia who came to the U.S. on a B-2 visitors visa in December 2003. Since that time, she never left the United States.  Because of her overstay, removal proceedings was initiated against her in September 2010.

In May 1986, our client’s aunt filed an I-130 (fourth preference) petition for her father.  This I-130 petition was approved in August 1986.  At the time the I-130 Petition was approved, our client was a minor and was a derivative beneficiary. Later, our client’s father filed an I-130 petition on behalf of our client in February 1998.  This Petition was approved in November of that year.

Our client contacted us around December of 2010 for consultation and sought legal assistance for her removal proceedings. After the consultation, we determined that she is eligible for adjustment of status under INA 245(i). Our client retained us on January 13, 2011.

Section 245(i) of the INA allows certain foreign nationals to become permanent residents of the United States despite entering without inspection (EWI) or overstaying (if beneficiary of petitions filed not by an immediate relative). Immigrants are barred from adjusting their status if they entered the United States without first being inspected and admitted by a Customs and Border Patrol officer and if they have either failed to maintain lawful status or been unlawfully employed in the country, with certain exceptions. Section 245(i) was first added to law in 1994 to allow certain people who otherwise would not be eligible to adjust their status to be able to do so upon payment of a $1,000 fine.

Four years later, on January 14, 1998, Congress phased Section 245(i) out of law. Immigrants and their families who had already begun the process of changing their status under Section 245(i) by January 14, 1998 were grandfathered into the section’s benefits. However, this left thousands of otherwise qualified persons who had not begun the process unable to adjust status in the United States. They could not return to their countries to begin the legal process of obtaining their permanent residency in the United States also without being subject to either a three- or a 10-year bar upon returning to the United States.

On December 21, 2000, Congress extended the qualifying date for Section 245(i) benefits to April 30, 2001. This law allowed immigrants who had labor certifications or visa petitions filed on their behalf between 1998 and April 30, 2001, to qualify for adjustment of status. Those who were beneficiaries of petitions filed prior to January 14, 1998 could still adjust despite an EWI record, and those people do not have to meet the December 2000 physical presence requirement.

Our client was the beneficiary of her father’s petition in February 1998, which is current, but this by itself would not have allowed her to adjust status since this was filed after January 1998 and because she came in 2003, thus not meeting the December 21, 2000 physical presence requirement. However, she was also the beneficiary of a petition filed before January 14, 1998, that of her aunt’s petition for her father. So it was two petitions that saved her case, one for 245i, and the other for adjustment eligibility.

Once retained, our office promptly filed a Motion to Change Venue from Buffalo to New York.  This was granted and on April 1, 2011, our office filed a request to join in a Motion to Terminate proceedings with an attached I-485 application and its supporting documents. The DHS counsel in New York agreed to terminate our client’s proceedings. Ultimately, the Immigration Judge granted the Motion to Terminate without prejudice on August 17, 2011.

Once her case was terminated, the USCIS New York scheduled an I-485 interview for our client. Prior to the interview, we thoroughly prepared our client through conference call. On May 1, 2012, our client was interviewed at the New York City USCIS office. Attorney JP Sarmiento accompanied her at the interview as well. Due to the complexity of the case, we made sure the officer was clear about our client’s 245i eligibility. On May 30, 2012, our client’s I-485 application was approved.  She finally became a green card holder.

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CASE: Adjustment of Status / Public Law 111-83 / INA Section 204(l) Amendment Issue (less stringent humanitarian reinstatement process)

CLIENT: Filipina

LOCATION: Chicago, IL / Los Angeles, CA

Our Filipina client came to the U.S. on a B-2 visitor’s visa in 2001 and overstayed her status. Currently, she resides in Los Angeles, California.

Prior to retaining our firm, her father filed an I-130 petition for her back in 1987. As some of you know, priority dates for Philippine nationals under the family-based immigration category are more retrogressed than other countries. The I-130 petition was approved by the INS in 1987.  However, she could not apply for her green card until her priority date became current.  Therefore, she had to wait for more than 15 years in order to even apply for her green card.

Unfortunately, her father (I-130 Petitioner) passed away before she was eligible to apply for her green card.  She was placed in removal proceedings after the DHS found out about her overstay. She was under the impression that nothing could be done since her father (the I-130) petitioner died.

We explained that we can terminate removal proceedings and we can help her adjust status with a substitute sponsor. Our office was retained in November 2010, and we later filed her I-485 Adjustment of Status application with a substitute sponsor (her US Citizen sister) and a Request to Join in a Motion to Terminate with the Department of Homeland Security in Los Angeles.

Before 2009, through the more stringent humanitarian reinstatement process, the INS (USCIS now) allowed the foreign national’s spouse, parent, mother-in-law, father-in-law, sibling, child who is at least 18 years of age, son-in-law, daughter-in-law, sister-in-law, brother-in-law, grandparent, grandchild, or legal guardian to become a substitute sponsor if a family-based visa petitioner dies following the approval of the I-130 petition but before the foreign national obtains permanent residence. Even if the I-130 had been approved, it would be deemed revoked once the petitioner dies. At that time, reinstatement of the revoked petition was not automatic despite a substitute sponsor being available. And the process was still a matter of discretion. The INS had to determine whether “humanitarian reinstatement” was appropriate based on the individual facts of the case.  Thus, the applicant must demonstrate exceptional hardship and request for humanitarian reinstatement if his or her petitioner is deceased before the petition gets reinstated.

Public Law 111-83 (2009) eased this burden for beneficiaries whose petitioners died prior to their adjustment of status application.  The new regulation does not require “humanitarian reinstatement” anymore.  Therefore, as long as they meet certain qualifications such as having physical presence in the U.S. at the time of the petitioner’s death and also having a qualified substitute sponsor for these beneficiaries, the beneficiaries are eligible to adjust.

Our client’s US citizen sister was willing to become a substitute sponsor and she met the physical presence requirement. On January 5, 2011, our office filed a request to join in a Motion to Terminate with the Los Angeles DHS. Our client’s master calendar hearing was scheduled on February 2, 2011 at the Los Angeles Immigration Court. Prior to her hearing, the DHS counsel in Los Angeles agreed to terminate our client’s proceedings.

With this joint motion, Attorney Sung Hee (Glen) Yu from our office represented our client at the Los Angeles Immigration Court.  Attorney Yu explained the new regulation and how this law applied to our client’s situation before the Immigration Judge.  The Immigration Judge granted termination without prejudice and her case was transferred USCIS Chicago Field Office for adjudication of her I-485 application.

On April 5, 2011, our client appeared at Chicago CIS office for her adjustment interview.  Attorney Yu accompanied her at the interview, and the interview went pretty smoothly. Attorney Yu explained the new regulations and explained them that the old humanitarian reinstatement standards were not needed anymore.

However, on October 3, 2011, the USCIS issued a Request for Evidence (RFE) for our client. The CIS argued that our client was not able to show humanitarian reasons for reinstatement.

It seemed though that the RFE did not take into account PL 111-83 and the new 2009 law. Under the new law, the Petition survives the death of the Petitioner also in categories of beneficiaries as long as they were residing in the U.S. on the date the Petitioner passed away and continue to reside in the U.S., including married sons and daughters of citizens and green card holders. A substitute sponsor who is a qualifying relative, such a U.S. Citizen sibling, shall still be needed, but the humanitarian factors are not.

Since our client’s case clearly fell under the amendments for INA Section 204(l), our office filed a Response to RFE on October 13, 2011 including a cover brief and 14 exhibits. We attached the law itself and highlighted the relevant parts.  Eventually, our client’s adjustment application was approved by the USCIS on February 15, 2012.  After a long wait, our client is finally a green card holder.

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CASE: Adjustment of Status / 245(i)
CLIENT: Chinese
LOCATION: Columbus, Ohio

Section 245(i) of the INA allows certain foreign nationals to become permanent residents of the United States despite entering without inspection (EWI). Immigrants are barred from adjusting their status if they entered the United States without first being inspected and admitted by a Customs and Border Patrol officer and if they have either failed to maintain lawful status or been unlawfully employed in the country, with certain exceptions. Section 245(i) was first added to law in 1994 to allow certain people who otherwise would not be eligible to adjust their status to be able to do so upon payment of a $1,000 fine.

Four years later, on January 14, 1998, Congress phased Section 245(i) out of law. Immigrants and their families who had already begun the process of changing their status under Section 245(i) by January 14, 1998 were grandfathered into the section’s benefits. However, this left thousands of otherwise qualified persons who had not begun the process unable to adjust status in the United States. They could not return to their countries to begin the legal process of obtaining their permanent residency in the United States also without being subject to either a three- or a 10-year bar upon returning to the United States.

On December 21, 2000, Congress extended the qualifying date for Section 245(i) benefits to April 30, 2001. This law allowed immigrants who had labor certifications or visa petitions filed on their behalf between 1998 and April 30, 2001, to qualify for adjustment of status. Those who were beneficiaries of petitions filed prior to January 14, 1998 could still adjust despite an EWI record, and those people do not have to meet the December 2000 physical presence requirement.

Our clients came from China and had approved I-130 petitions (F-4 category) filed by our client’s U.S. Citizen brother in 1987.  Now that their son (over 21 years old) is a U.S. Citizen, we also filed an I-130 petitioned by their son on their behalf.  However, they have an EWI (Entry without Inspection and Admission) record in 2008. Since our clients are beneficiaries of an approved I-130 F4 petition filed in 1987, they can still adjust status through INA § 245(i) despite their entry issue. Also, since the F-4 petition was filed before January 14, 1998, physical presence in December 2000 was not required.

Our office was retained on May 23, 2011. We prepared and filed the Adjustment of Status Application with Form I-485 Supplement A on July 9, 2011.  Everything went smoothly and the receipt notices, the fingerprint appointment, and the work permit all came on time. There was no Request for Evidence.  Prior to the interview, we thoroughly prepared our clients with our Chinese speaking staff.   On October 11, 2011, our client was interviewed at the Columbus, Ohio USCIS office.  We accompanied them at the interview as well. Prior to the interview, we submitted a brief pertaining to the INA § 245(i) issue, including documents evidencing the fact that an I-130 was filed in 1987. The petition and green card applications were approved on the same day.

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CASE: Termination of Removal Proceedings / Adjustment of Status
ISSUES: 245i; Deceased Petitioner
CLIENT: Filipino
LOCATION: Cleveland, Ohio

This case involves a situation where the beneficiaries had to wait over ten years for priority dates to be current, only to have the petitioner die prior to that happening. Our client, his wife and son, are from the Philippines and came to the U.S. on B-2 visitor’s visas back in 2002. They overstayed their tourist status and have been out of status ever since.

Prior to retaining our firm, our client’s mother filed an I-130 petition for him back in 1992.  As some of you may know, the priority dates for Philippine nationals under the family-based immigration category are more retrogressed than other countries. The I-130 petition was approved by the INS in 1992.  However, our client could not apply for his green card until his priority date became current. He had to wait for almost 20 years in order to even apply for his green card.

Unfortunately, his mother (I-130 Petitioner) passed away before he was eligible to apply for his green card.  He and his family was placed in removal proceedings after the DHS found out about his overstay. He was under the impression that nothing could be done since his mother (the I-130) petitioner died.

Once he contacted our office, we explained that an October 2009 law can help his entire family obtain a green card. We can terminate removal proceedings and apply for adjustment of status application with a substitute sponsor – his U.S. Citizen sister. We also informed him that Section 245i would make him eligible to adjust despite his overstay.

Our office was retained in August 2010, and we later filed his I-485 Adjustment of Status application with a substitute sponsor (his US Citizen sister) and a Request to Join in a Motion to Terminate with the Department of Homeland Security before his immigration hearing. We explained this to the Judge and government attorney at the Cleveland Immigration Court.

As we explained in a previous Success Story, the regulation in 2009, Public Law 111-83 (2009), eased the high burden for beneficiaries whose petitioners died prior to their adjustment of status application.  The new regulation does not require “humanitarian reinstatement” anymore.  Therefore, as long as there is a qualified substitute sponsor for these beneficiaries, the beneficiaries are eligible for adjustment of status even if the original petitioners are deceased.

Our client’s US citizen sister was willing to become a substitute sponsor for our client. On September 27, 2010, our office filed a request to join in a Motion to Terminate Proceedings with the family’s I-485 applications and supporting documents.  Thereafter, with the government’s agreement, the Immigration Judge terminated our client’s removal proceedings on September 28, 2010.  With the Judge’s Order, our office filed our client’s I-485 Adjustment of Status applications with the USCIS on October 7, 2010.  Everything went smoothly and the receipt notices, fingerprint appointment, and work permits all came on time.

On January 3, 2011, our clients had their I-485 interview at the USCIS Cleveland Office.  Our lawyer accompanied our client and his family members for the interview. The Interview went smoothly, but our client could not get his green card right away due to a slight retrogression of priority dates.  Fortunately, in July 2011, his priority date became current, and the USCIS immediately approved his entire family’s Adjustment of Status application. After a 19 year wait from the time our client’s mother filed an I-130 petition, to a 9 year wait from the time his family entered the United States, finally, our client’s family all have their green cards.

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