The Legal Immigration Family Equity (LIFE) Act and LIFE Act Amendments of 2000 (Pub. L. 106-553 and -554) enable certain individuals who are present in the United States who would not normally qualify to apply for adjustment of status in the United States to obtain a green card (permanent residence) regardless of:
- The manner they entered the United States
- Working in the United States without authorization
- Failing to continuously maintain lawful status since entry
To qualify for this provision, you must be the beneficiary of a labor certification application (Form ETA 750) or immigrant visa petition (Forms I-130, Petition for Alien Relative or I-140, Immigrant Petition for Alien Worker) filed on or before April 30, 2001. In most cases, you must pay an additional $1,000 fee and complete Supplement A to Form I-485, Application to Register Permanent Residence or Adjust Status, to apply under Section 245(i) provisions with your adjustment of status application (Form I-485).
Refer to Section 245(i) of the Immigration and Nationality Act (INA).
You may be eligible to receive a green card through Section 245(i) if you:
- Are the beneficiary of a qualified immigrant petition (Form I-130 or I-140) or application for labor certification (Form ETA-750) filed on or before April 30, 2001
- Were physically present in the United States on December 21, 2000, if you are the principal beneficiary and the petition was filed between January 15, 1998, and April 30, 2001
- Are currently the beneficiary of a qualifying immigrant petition (either the original Form I-130 or I-140 through which you are grandfathered or through a subsequently filed immigrant petition)
- Have a visa immediately available to you
- Are admissible to the United States
In addition, the qualifying immigrant visa petition or the qualifying application for labor certification must have been “properly filed” (signed and submitted with the correct fees) and “approvable” (meritorious based on the facts and “non-frivolous”) when filed.
Depending on the circumstances, a spouse or child of a grandfathered individual may also be a grandfathered or may be eligible to adjust status as a dependent under Section 245(i) of the INA.
Qualifying Petition or Labor Certification
Labor certifications or visa petitions filed to preserve an individual’s adjustment eligibility under Section 245(i) must be both properly filed and approvable when filed to qualify. To meet this test, at a minimum the filing must be timely (filed by April 30, 2001) and meet all applicable substantive requirements (“approvable when filed”). Deficiencies such as lack of fee or original signature disqualify the submissions.
If the Petition Or Labor Certification Is Withdrawn, Denied Or Revoked
If you withdraw the petition or have been denied or revoked after approval by the former Immigration or Naturalization Service (INS) or by USCIS, you may still be grandfathered, depending on the reasons for the withdrawal, denial or revocation. It depends on whether a visa petition or labor certification was "approvable when filed." To remain eligible, the changed circumstances must relate to factors beyond your control rather than the merits of the petition at the time of filing.
If the Petitioner Dies Or The Employer Otherwise Is Unable To Maintain The Petition
You may still be grandfathered if the:
- Petitioner dies
- Family member who filed the petition divorces you
- Employer who filed the labor certification or subsequent Form I-140 goes out of business
- Petitioner or the employer chooses to withdraw the petition or labor certification
- Petitioner or employer is otherwise not able to maintain the petition or labor certification application
As indicated above, it depends on the reasons for the final action. In addition, the changed circumstances must relate to factors beyond your control rather than the merits of the petition at the time of filing. As long as the petition or labor certification application was "approvable when filed," you should remain grandfathered.
To obtain a green card, you need to file Form I-485, Application to Register Permanent Residence or Adjust Status. You must also file Form I-485, Supplement A, with fees at the same time unless you meet an exception. For more information on exceptions, please see the instructions for Form I-485, Supplement A.
Supporting Evidence for Form I-485
You should submit all of the following evidence with your I-485:
- Two passport-style photos
- Form G-325A, Biographic Information
- Copy of government issued photo identification
- Copy of birth certificate
- Copy of passport page with nonimmigrant visa (if applicable)
- Copy of passport page with admission (entry) or parole stamp (if applicable)
- Form I-94 Arrival/Departure Record (if applicable)
- Form I-693, Report of Medical Examination and Vaccination Record
- Form I-864, Affidavit of Support, if applicable
- Either the concurrently filed immigrant petition or the Form I-797, Notice of Action, for the pending or approved immigrant petition that you are using as your basis of adjustment, if you are not adjusting based on the grandfathered immigrant petition
- Current filing fee
- Supplement A to Form I-485 with:
- Copy of the immigrant petition or labor certification or Form I-797, Notice of Action, that you are using as the basis for 245(i) grandfathering
- Proof of your physical presence in the United States on December 21, 2000, if applicable
- $1,000 fee, if applicable
Work & Travel Authorization
Generally, when you have a pending Form I-485, it is possible for you to apply for authorization to work in the United States and to seek advance parole (advance permission to travel and be admitted to the United States upon your return). For further information, see our Work Authorization and Travel Documents.
Note: See the other considerations found below before traveling.
Adjustment of Status Under Section 245(i) of the INA and LIFE Act Provisions
Many persons mistakenly believe that Section 245(i) of the INA constitutes amnesty, i.e., forgiveness of unlawful presence or other breaches of status. On the contrary, unlawful presence continues to accrue until an application for adjustment of status is filed (which stops accrual of unlawful presence). Section 245(i) does not protect an individual from deportation nor does having a grandfathered petition or application for labor certification place an individual in a period of stay (free from removal proceedings) authorized by the Secretary of Homeland Security.
For example, an individual illegally in the United States accrues unlawful presence until he or she properly files an application for adjustment of status. An individual who accrued 180 days or more of unlawful presence in the United States, and then departs the United States (even if the individual previously obtained an advance parole (travel document)), will trigger a bar to adjustment of status or immigrating on an immigrant visa (a 3-year or 10- year bar under Section 212(a)(9)(B) of the INA). This bar is not forgiven by Section 245(i) in most instances.
There are many other grounds of inadmissibility that apply even though you may have an application for adjustment of status under Section 245(i). Therefore, an individual who continues to work without authorization may remain eligible to adjust status if and when permanent residence is approved and an immigrant visa is available, but may be removed from the United States if discovered in the meantime. Furthermore, a United States employer who files a labor certification or Form I-140, naming an unauthorized individual as beneficiary, will be subject to sanctions if discovered to be knowingly employing that individual prior to adjustment of status or USCIS granting work authorization. The application for adjustment of status under Section 245(i) does not protect an individual against removal based on an applicable ground of inadmissibility by Immigration and Customs Enforcement (ICE).
Once an application for adjustment of status is filed (Form I-485), the individual becomes eligible for work authorization and may work if he or she applies for and obtains an Employment Authorization Document.
Background of Section 245(i) of the INA
In 1994, Congress enacted Section 245(i) of the INA, permitting certain individuals who were otherwise ineligible for adjustment of status in the United States to pay a penalty fee for the convenience of adjusting status without leaving the United States. Prior to enactment of the LIFE Act Amendments, the window for preserving adjustment eligibility under Section 245(i) ended or cut off on January 14, 1998, after which only "grandfathered" individuals (beneficiaries of labor certifications or immigrant visa petitions filed on or before that date) were eligible to adjust status under Section 245(i) . The cut-off date of Section 245(i) changed several times; however, then President Clinton signed into law a provision that changed the nature of Section 245(i) to “grandfather” those individuals in the United States for whom an immigrant visa or application for labor certification was filed on or before January 14, 1998.
On December 21, 2000, the LIFE Act Amendments temporarily restored eligibility under Section 245(i) by replacing the previous cut-off date of January 14, 1998, with a new date, April 30, 2001. Accordingly, a beneficiary of a labor certification application or immigrant visa petition filed on or before April 30, 2001, preserves an individual’s eligibility to adjust status under Section 245(i) if certain conditions are met. The LIFE Act added a significant requirement to Section 245(i). If the qualifying petition or labor certification was filed after the previous cut-off date of January 14, 1998, the individual must have been physically present in the United States on the date of enactment (December 21, 2000) in order to qualify for Section 245(i) benefits under LIFE.
Section 245(i) grandfathers individuals themselves as well as the applications or petitions filed for them. The basis of a grandfathered individual’s eventual adjustment, however, is not restricted to the application or petition filed to preserve adjustment eligibility. The grandfathered individual’s application for adjustment of status may be based on any adjustment provision available to the individual at the time of adjustment.
For example, a qualifying Form ETA-750 filed on or before January 14, 1998, preserves the individual’s eligibility to adjust status after that date. However, the filed ETA-750 does not commit that individual to adjustment on the basis of an employment based petition. If, after January 14, 1998, the individual was named as beneficiary in a family based petition or won an immigrant visa in the diversity lottery, he or she may adjust status on the new basis. (Note that the immigrant visa won in the diversity lottery will not grandfather an individual, but may be used as a basis of adjustment by an individual who is already grandfathered under Section 245(i)).