A Hillary Clinton administration may be immigrant-friendly, but if Donald ducks and dodges defeat as the U.S. Presidential candidate of the Republican Party, then illegal immigrants need to know their options.
In practice and under current U.S. rules and regulations, only persons lawfully present in the U.S. are eligible to apply for adjustment of status. Under President Donald Trump (see video), however, illegal immigrants or those unlawfully present are gone on day one.
When a foreign national with a valid visa (visitor, student, working, business, investor, etc), and still in the country in an authorized status or category (as indicated in the person’s arrival document or arrival date on record with the USCIS/Customs and Border Protection), that person may apply for adjustment of status from temporary to permanent resident status.
Another way of legalizing one’s stay is by change of status from one nonimmigrant category to another, as long as the person is still in status. For example, a B-1/B-2 visa holder admitted as a temporary visitor for pleasure (B-2) may change status to an F-1 (academic student) or H-1B (temporary work visa for specialty occupations).
To apply for lawful permanent residency, however, in the U.S., the person must change status from temporary to permanent called the Adjustment of Status application.
Legalization for Family Unity
In 2001, the Legal Immigration and Family Equity (LIFE) Act was created allowing persons whose authorized stay in the U.S. has expired, or by committing some actions, the visa holder becomes unlawfully present. Both these categories added to the Unauthorized population in the U.S., now estimated at more than 11 million.
Under Section 245(i) Provision of the LIFE Act “certain persons, who have an immigrant visa immediately available but entered without inspection or otherwise violated their status and thus are ineligible to apply for adjustment of status in the United States.
However, the “certain persons” described above may still apply for adjustment of status provided they meet certain criteria and pay a $1,000 penalty.
The original beneficiaries under the LIFE Act temporarily were limited to eligible individuals who were the beneficiary of a visa petition or labor certification application filed on or before January 14, 1998. The deadline was later extended to April 30, 2001.
Who are the "certain persons" covered under Section 245(i) adjustment of status?
The USCIS official infosheet shows that the “certain persons” under LIFE Act include individuals who:
How do these “Certain Persons” become eligible to apply for adjustment under Secti8on 245(i)?
To be eligible, the adjustment of status applicant must be the beneficiary of an immigrant visa petition or labor certification filed after January 14, 1998. The applicant must also be physically present in the U.S. on December 21, 2000 and the adjustment of status application must have been filed on or before April 30, 2001.
The immigrant visa petition must have been filed by:
All petitions and applications must be properly filed and approvable when filed.
Is applying for adjustment of status under Section 245(i) still available?
Yes, LIFE Act 245(i) has transitioned to Section 245(i) of the Immigration and Nationality Act (INA) allowing the same categories of “certain persons” physically present in the United States.
Additional Categories to Certain Persons Eligible under Section 241(i)
The following classes of “illegal immigants” may still apply for adjustment of status (thereby legalizing their stay, but not amnesty):