In a recent speech on comprehensive immigration reform President Bush said, "The right thing to do is to recognize that if you've been here illegally, that there ought to be a cost for doing so, but also recognize there are decent, hardworking people that have contributed to our society at the same time. And so I believe here's a way to work out -- work through this problem .... In other words, there's a way to verify your contributions to our society. And then, if you want to be a citizen, you can get in line to be a citizen, but not at the head of the line, you get to get at the back of the line." Lets hope this sentiment prevails in the upcoming fight between the Senate and House in Conference Committee, where any final immigration law will be passed.

QUESTIONS:

Question: I have a question for you that relates to one of your past columns about 245(i). I am wondering if I fall into that category. My family came to the U.S. from Jamaica in 1989 and stayed. I was 14 at the time. We didn’t have legal status, so my mother’s sister (my aunt) filed a family petition for my mom. A few years ago the visa was approved and my parents obtained their Green Cards. However, since I was no longer a minor, I couldn’t get mine. But now it seems like I might still have some hope, because according to what you said, as long as I was a minor when the application was filed, I can still use 245(i). Is this true? What about if I get married, would my new wife be covered?  Is there a limitation on how many years I can use it?

Answer: Yes, from the information you have provided, I believe you have the classic case of a minor child who is a dependant of the main beneficiary of a family petition (your mom), obtaining eligibility under 245(i) by virtue of an I-130 family petition (or I-360, I-140 or Labor Certification) being filed by April 30, 2001. Even though the law has expired, since the I-130 was filed for your mom before April 30, 2001 and you were a minor at the time it was filed, you are considered to be “Grandfathered in” and can take advantage of it’s benefits. There is no time limit; you may use it any time in conjunction with a new I-130 filed on your behalf by a family member or another type of immigrant visa petition, such as an employment-based I-360, I-140 or Labor Certification. Just remember that your eligibility under 245(i) does not confer U.S. residency on you, but it does allow you to adjust your status to a U.S. resident “inside” the U.S. if you qualify for an immigrant visa. Let me give you an example. Let’s say you are single now and 25 years old. Your employer wants to sponsor you for a Labor Certification, which once approved, would lead to the immediate filing of an immigrant visa and application for U.S. Residency. Under normal circumstances, without eligibility under 245(i), your employer could file and obtain an approval of a Labor Certification and an I-140 immigrant visa could be filed for you, but current immigration regulations do not allow a foreign national who has accrued 180 days or more of “unlawful status” in the U.S. to adjust status to a Green Card inside the U.S. However, since your aunt filed an I-130 for your mom before April 30, 2001, while you were still a minor, you are allowed to adjust your status in the U.S. by paying a $1,000 penalty at the time of filing your I-485 application. Second example, lets say that you have a fiancée who is in illegal status. As long as you marry  before you file the I-140  immigrant petition, your new spouse is also eligible and will be able to file an I-485 application to adjust  status to U.S. residency. Let me give you another example based upon a family petition. Let’s say that your mother is now a U.S. citizen and wants to petition for you. Under current immigration regulations, you would need to be in legal status in order to be able to obtain your Green Card inside the U.S.. However, since you are “grandfathered” in 245(i), once a visa becomes available in that category (approx. 5 yrs if you are single and approx. 8 if you are married), you can both pay the $1,000 penalty and adjust to U.S. residency inside the U.S. Good luck!