Who Qualifies for Adjustment of Status Under INA 245(i) — and How Does Grandfathering Work?

Purpose and Background

INA 245(i) was originally enacted in 1994 as a temporary measure allowing certain otherwise-ineligible aliens to adjust status by paying an additional statutory sum. After extensions, Congress made it permanent but replaced the sunset date with a requirement that the qualifying petition or labor certification be filed on or before January 14, 1998. In 2000, Congress extended the filing deadline to April 30, 2001 and added a physical presence requirement for petitions filed after January 14, 1998: the principal beneficiary must have been physically present in the United States on December 21, 2000.

Bars 245(i) Can Overcome

245(i) may overcome any or all of the following 245(a) adjustment bars. The applicant:

• Last entered without being admitted or paroled;
• Last entered as a nonimmigrant crewman;
• Is or has ever been employed without authorization;
• Is not in lawful status on the filing date;
• Has ever failed to continuously maintain lawful status;
• Was last admitted in transit without a visa;
• Was last admitted under the Guam or CNMI Visa Waiver Program;
• Was last admitted under the Visa Waiver Program;
• Is seeking employment-based adjustment and is not in lawful nonimmigrant status on the filing date; or
• Has ever violated nonimmigrant status terms.

245(i) does not overcome the INA 245(c)(6) adjustment bar (terrorism-related deportability) because that conduct renders the applicant independently inadmissible.

The Two-Step Adjudication

What Makes an Alien "Grandfathered"?

A grandfathered alien is or was the principal or derivative beneficiary of a qualifying immigrant visa petition (Forms I-130, I-140, I-360, or I-526) or qualifying permanent labor certification application (ETA Form 750), provided the petition or application was:

• Properly filed on or before April 30, 2001 (physically received by legacy INS on or before April 30, 2001, or postmarked on or before April 30, 2001; submitted with correct fees and proper signature); and
• Approvable when filed (meritorious in fact and non-frivolous).

For petitions filed after January 14, 1998: the principal beneficiary must also have been physically present in the US on December 21, 2000.

Meritorious in fact for an immigrant petition means the beneficiary met all substantive eligibility requirements at the time of filing — what matters is whether the petition merited approval if it had been fully adjudicated, not whether it was actually approved. Non-frivolous means filed in good faith with a reasonable belief in some legal or factual basis for approval. An approved petition is generally presumed approvable when filed. A denied or revoked petition may still grandfather the beneficiary if the denial/revocation was due to circumstances arising after filing.

Derivative Beneficiaries as Grandfathered Aliens

A qualifying petition grandfathers the principal beneficiary’s spouse and unmarried children under 21 as of the date the petition was properly filed — they need not be named in the petition and need not continue the qualifying relationship. A grandfathered derivative may adjust independently under 245(i) on a completely different basis (e.g., a former spouse who later wins the diversity visa lottery remains grandfathered). Once grandfathered, the status persists until the person adjusts to LPR status.

Current Family Members of Grandfathered Aliens

The current spouse or child of a grandfathered alien who is the principal adjustment applicant may also adjust under 245(i) even if the current family member is not themselves grandfathered, as long as the relationship continues to exist at filing and adjudication. A spouse or child acquired after the qualifying petition was filed may adjust as an accompanying/following-to-join family member through the principal but cannot adjust independently under 245(i).

The $1,000 Statutory Sum

All 245(i) applicants must pay an additional $1,000 statutory sum, which is an absolute eligibility requirement — it is not a fee and cannot be waived. Exempt from the sum: applicants who are unmarried and under 17 years old; spouses of legalized aliens qualifying for Family Unity Benefits (Form I-817); and unmarried children under 21 of such qualifying legalized aliens. A separate Supplement A and $1,000 must be submitted with each adjustment application filed by the applicant unless exempt.

Full 245(i) Adjustment Eligibility Requirements

In addition to being grandfathered, the applicant must: file Form I-485 and Form I-485 Supplement A with the $1,000 sum (unless exempt); be physically present in the US at the time of filing; be eligible for an immigrant visa under a qualifying immigrant category; have an immigrant visa immediately available at filing and at final adjudication; be admissible or eligible for a waiver; and merit the favorable exercise of discretion. 245(i) does not affect visa availability — the applicant must wait for a visa number like any other adjustment applicant.