LIFE 245i Question
 

I can’t seem to find an answer to this but someone married to a US citizen with no legal entry will need to file a 601a waiver and do counselor processing in their home country even though they were present in the US when the LIFE act was signed? So pretty much 245i of LIFE act is only for those with a legal entry?

Re: LIFE 245i Question
 

To be qualified, the person must have a petition filed during that time, not just physical presence.

"To avail of 245(i) immigration, you must be the beneficiary of an immigrant visa petition or labor certification application filed on or before April 30, 2001, and must have been physically present in the United States on December 21, 2000; this allows certain undocumented individuals to apply for a green card through adjustment of status, even if they entered the country without inspection or overstayed their visa, by filing Form I-485 and Supplement A with USCIS, provided they meet other eligibility requirements like having a visa immediately available and being admissible to the US; consult an immigration attorney to confirm your eligibility and guide you through the process"

Re: LIFE 245i Question
 

So, the way that 245(i) works is that if you're grandfathered under it then yes, you should be eligible to AOS despite an EWI, being out of status, etc, in basically any category (even things people normally don't think about like the DV lottery). But it's a bit more than you've been merely present in US on the day the life act was signed into law.

The way that it works is that it requires you to had an immigrant petition (I-130/I-140/I-360/I-526) or a PERM Labor Certification filed on your behalf, either as the principal or a derivative by the sunset date (April 30, 2001). Also the petition/certification must've been "approvable when filed", which basically means it was approved, or it was denied but ultimately it was legit and it was denied for some other reason.

Then for the physical presence it depends on the when the petition/certification was filed:
January 15, 1998 to April 30, 2001 - The primary beneficiary must've been physically present in US on December 21st, 2000.
On or before January 14, 1998 - There's no physical presence requirement.


So lets say that your mother got petitioned by a sibling lets say in February 2001. In order to make use of 245(i) in this case you'd need to:
1. Include I-485 Supplement A
2. Pay the $1000 penalty
3. Provide proof of said petition (e.g. I-130 approval notice, I-130 from the FOIA, etc)
3a. If it was denied then you'd need to prove that it was legit so in a case like this you'd need to prove that the uncle and mom are in fact brother and sister. (Family petitions are an easier example because either a relation exists or it doesn't, labor petitions get more fuzzy if you have to try to relitigate an EB-1 from 24 years ago).
5. Provide proof that your mother was physically in US on Dec 21 2001.



Honestly, if you'd show up sometime in Biden's term I would've just recommended getting advance parole, leaving, coming back on it, now you've got a legal entry and could just AOS via marriage to a US Citizen.

Re: LIFE 245i Question
 

Got it, thank you both. I appreciate it.