YOU CAN USE YOUR OLD SECTION 245(i) FILING FOR A NEWLY FILED CASE – Part 3
by Michael J. Gurfinkel, Esq.

In previous articles, I discussed some of the commonly asked questions about the benefits of Section 245(i), which was a law that allows a person who is out of status to adjust status (be interviewed for a green card in the U.S.), even if they overstayed, worked without authorization, snuck across the border, jumped ship, etc.

Here are other commonly asked questions about Section 245(i):

7. Are my children and spouse also grandfathered under Section 245(i)?

If a person is the beneficiary of a family petition or labor certification application, not only is that person “grandfathered” under Section 245(i), but also his or her spouse and children under 21. For example, if you were sponsored by an employer through labor certification, not only are you grandfathered under Section 245(i), but also your spouse and children under 21.

8. What if I got married after being petitioned for Section 245(i). Would my spouse and kids also benefit from Section 245(i)?

“After-acquired” spouses of the grandfathered alien are also grandfathered, as long as you married before you adjusted status. Many aliens who availed of Section 245(i) before the deadline will marry or have children after the qualifying family petition or labor certification application was filed, but before adjustment of status. These "after-acquired" children and spouses are also allowed to adjust status (be interviewed for a green card in the U.S.) under Section 245(i), as long as they acquired the status of a spouse or child before the principal alien ultimately adjusts status. For example, if a single person was sponsored for labor certification before the deadline, and, while the case is pending, he marries someone who is TNT, then that TNT spouse could also avail of Section 245(i), even though that newly-acquired spouse did not have a case filed on his or her behalf before the deadline. In other words, the newly acquired spouse or children can later be "added on" to the original petitioned (or sponsored) alien’s Section 245(i) eligibility. (NOTE: Unmarried sons and daughters of green card holders should not get married, as that would void their petition.)

9. What if my spouse was not “physically present” in the US on December 21, 2000. Would she still be eligible under Section 245(i)?

The after-acquired spouse is not required to have been “physically present” in the U.S. on December 21, 2000. Only the petitioned alien (or principal beneficiary) is needed to be “physically present” in the U.S.

10. Would my child who turned 21 continue to retain Section 245(i) eligibility, even after reaching 21 years of age.

Sometimes a parent is under petition, and he has a child who is under 21 years of age. That child, of course, would also be covered under Section 245(i), and could adjust status along with the parent, provided that the child is still under 21 years of age at the time of the parent’s adjustment of status. However, if the child turns 21 before the parent adjusts status, the child is considered to have “aged out”, and may no longer be included under the parent’s case (unless qualified under the Child Status Protection Act). Although the “aged out” child may not be included under the parent’s case, the child retains his Section 245(i) eligibility, and if he could, perhaps, find an employer to petition him, he could use the Section 245(i) eligibility acquired while he was still under 21 (through the parent’s case). If this "aged out" child married, he would also continue to preserve his Section 245(i) eligibility.

11. What if my spouse and I divorce before we adjust status. Would I retain Section 245(i) eligibility even after the divorce?

A grandfathered spouse would retain Section 245(i), even after a divorce.
If an employer or family member petitions a person, that person is, of course, grandfathered under Section 245(i). In addition, his or her spouse is also grandfathered. However, if, before the principal alien adjusts status, the couple gets divorced, the spouse would still retain Section 245(i) eligibility, even though he or she is no longer married to the person who was petitioned, (and therefore no longer eligible to adjust under the sponsored alien’s petition). In that case, the divorced spouse could find an employer, and be sponsored by his/her employer for a new labor certification, filed long after the deadline.

As you can see, there are numerous advantages to Section 245(i), once you have been grandfathered. The fact that Section 245(i) eligibility is transferable to a different case, and is retained even after various changes in circumstances, means that you should look for faster ways to obtain a green card.

If you have been grandfathered under Section 245(i) under a slow-family petition, you should consider finding an employer for labor certification. In addition, I strongly recommend that you seek the advice of a reputable attorney, who can analyze your situation, and advise you on the proper way of legalizing your status in the fastest possible way, using the transferability benefits of Section 245(i). If you are out of status, but have Section 245(i) eligibility, use it to its fullest potential!

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