Crewmen and EWIs Benefit from Section 245 (i)

May crewmen and EWIs (aliens who entered without inspection) adjust their status to that of permanent residents in the US based on their marriage to a U.S. citizen?

Section 245 (a) of the Immigration and Nationality Act says no. They have to go to a U.S. Consulate abroad to apply for an immigrant visa.

But the problem in going abroad is that under the Illegal Immigration Reform and Immigrant Responsibility Act (IIRIRA) of 1996, aliens who accumulate between six months and one year of unlawful presence in the U.S. after April 1, 1997 are barred from entry to the U.S. for three years. If the unlawful presence is one year or more, they are barred for ten years.

There is a provision in the law, however, known as Section 245 (i) that allows them to apply for adjustment of status if they are the beneficiaries of a family petition or an employment-based petition or labor certification that was properly filed and approvable when filed on or before April 30, 2001. They have to pay a penalty of $1,000.00.

This law which was first enacted in 1994 had previously expired on January 14, 1998. It was revived by the Legal Immigration and Family Equity (LIFE) Act amendments enacted on December 21, 2000.

Physical presence in the U.S. on December 21, 2000 is required if the petition or application was filed after January 14, 1998. Physical presence may be proved by government documents such as driver’s license, income tax records or benefit records. It may also be proved by school records, dated photographs, postmarked envelopes, employment records, rental receipts, utility bills, bank statements or credit card statements.

Section 245 (i) preserves the eligibility of aliens to adjust status at any time. The petition or application that was filed prior to the expiration of the law “grandfathers” them. Their “grandfather” status continues until they get their greencard.

The aliens are not limited to apply for adjustment solely on the basis of their qualifying visa petition or labor certification application. They may also adjust on any other basis for which they are eligible.

Thus, in the case of crewmen and EWIs, they may adjust their status based on the petition of an American citizen wife. The qualifying application may be a petition or labor certification filed by an employer or a family petition filed by a parent of brother.

Their “grandfather” status is not affected by the death of the previous petitioner or the withdrawal or disapproval of the labor certification or employment-based petition.

Until they adjust their status, there is no limit to the number of applications that they may file provided they meet the “grandfather” requirements, including payment of the penalty fee.