In a family-based petition situation, visas are considered to be “immediately available” to immediate relatives when there are no quotas. There are no quotas (an unlimited amount of visas) for immediate relatives of a United States Citizen (U.S.C.). “Immediate relatives” are parents of a U.S.C., children of a U.S.C. under the age of 21, or spouses of a U.S.C. Petitions filed for other family members, such as brothers or sisters, or for children over the age of 21, are subject to a quota system (limited amount of visas in these categories). Therefore, those are not considered immediate relatives and cannot adjust under §245(a). It should also be noted that spouses and children of legal permanent residents (LPRs) are also subject to a quota and are not eligible to adjust under §245(a).
In the employment-based context, persons can only adjust if their visas are currently available and they are in lawful status.
However, if a person is not eligible under INA §245(a) because s/he is out of status, entered the U.S. without inspection, or have violated the terms of their non-immigrant visa, s/he may still be eligible to adjust under §245(i).
A person is eligible to adjust under §245(i) if s/he:
- Has been physically present in the U.S. since December 21, 2000;
- A visa petition or a labor certification must be filed for the benefit of the alien on or before April 30, 2001;
- The immigration petition or the labor certification application must be approvable at the time of filing; and
- The applicant must pay a $1,000 penalty at the time of filing Form I-485.
It should be noted that once a visa petition or labor certification has been filed prior to the sunset deadline (April 30, 2001), the immigrant or any of his/her derivatives (children or spouse) are deemed to be grandfathered. This means that the immigrant and/or derivatives can adjust through this visa petition or any other petition in the future.
For example, if a person entered without inspection or without a visa before December 21, 2000, and had a petition or labor certification filed on his behalf before the sunset date (April 30, 2001, as announced by Congress), s/he would still be eligible to obtain a green card in the United States, despite his illegal entry.
Similarly, if that person’s employer had filed a labor certification before the sunset deadline, s/he would still be eligible to pay a penalty fee and adjust his status based on an employment petition.
If a person does not qualify under §245(a) or §245(i), he or she may be eligible for a provisional waiver. See Provisional Waiver Blog at https://cindypaulesq.com/provisional-unlawful-presence-waiver.html