Introduction to 245(i) 2/2
Posted on May 09, 2006 by Warren Wen | Category: Immigration
Many people know that an alien can apply for green card if he or she gets married with a U.S. citizen or green card holder, but many are not aware that marriage with a U.S. citizen or a green card holder could also help aliens to adjust their status even if their status has been illegal. As we mentioned in the last article, if an alien is illegal now, he/she can only adjust his/her status only if he/she is qualified for following three categories: being qualified for asylum, or being grandfathered under section 245(i), or gets married with a U.S. citizen. Thus, for qualified applicants who get married with the U.S. citizens or green card holders, they can adjust their status in the U.S. right now and do not need to wait for new amnesty. However, people who get married with U.S. citizen, and people who get married with green card holder, are treated differently under the U.S. immigration law. They have to follow the different paths.
Ms. Wang, entered the U.S. legally in 1998, but her status is illegal now. Last year, she got married with a U.S. citizen and planned to apply for green card. However, she heard from others that she cannot apply for green card although she’s currently married with a US citizen, because she does not have a legal status. She wants to know whether this is true, and if so, what other ways can she adjust her status in the US.
What Ms. Wang heard is not true and an alien can adjust his/her status in the U.S. based on marriage with a U.S. citizen as long as they entered the U.S. legally according to the U.S. immigration law. In addition, there is no quota restriction for this category. Thus, Ms. Wang can adjust her status in the U.S. right now. However, if the alien got married with green card holder, the situation would be different.
Mr. Chen, entered the U.S. legally in 1997. He had applied for labor certification before Apr. 30, 2001, but unfortunately, his application was denied. In 2002, he got married with a green card holder, nevertheless, he didn’t know if he can adjust his status in the U.S. legally based on his marriage.
Mr. Chen also can adjust his status legally in the U.S., but it is different from Ms. Wang’s case. An alien can adjust his/her status based on marriage with a green card holder, but he/she has to leave the U.S. to apply for green card if he/she isn’t grandfathered under section 245(i). Additionally, there is quota restriction for this category, so they have to wait until their visa number is available in order to apply for green card. Mr. Chen has applied for labor certification before Apr. 30, 2001 and he is qualified for being grandfathered under section 245(i). If he applies for green card based on his marriage with green card holder, with being grandfathered under section 245(i), he can adjust his status in the U.S. legally.
Generally speaking, for qualified illegal immigrants, marriage with the U.S. citizen or green card holder can help them to adjust their status in the U.S, although their privileges and procedures may differ based on each individual case. To understand your options and to find the best way to adjust your status legally, it is recommended that you seek an experienced attorney to review your case.
This article is only for your reference. Please do not apply mechanically to any exact cases. You are welcome to consult our attorneys at Liu & Associates, P.C. For contact information, please click here.