I received a flurry of e-mails on my posting about the 3/10 year bar.
Many commiserate with poor Procopio, who was denied his immigrant visa. One reader asked if there was a way Procopio could have remained in the United States and, instead, had his application processed there.
Sure, there was- if Procopio was eligible for it. It’s found in Section 245(i) of the Immigration and Nationality Act (INA).
Normally, an alien who has an approved immigrant visa petition and whose visa number is available, and is present in the United States may apply- if eligible- for a “Green Card” without leaving the country, through a process called “adjustment of status.”
With “adjustment of status,” the alien doesn’t have to go back to his home country and apply for the immigrant visa at the U.S. Embassy.
But, first, the alien has to be eligible for “adjustment of status.” In general, this means, he must have maintained a valid non-immigrant status in the United States and have not engaged in unauthorized employment.
What if the alien- like Procopio- isn’t qualified for “adjustment of status” because he became “unlawfully present” or to use a familiar term, “TNT”?
That’s when Section 245(i) of INA comes in. It allows the alien, otherwise ineligible, to adjust status in the United States.
To be eligible for Section 245(i), the alien must be the beneficiary of one of the following:
(1) A family petition or employment-based petition that was filed on or before January 14, 1998;
(2) Eligible under the Legal Immigration and Family Equity Act of 2000 (Life Act). This law extended the cutoff date for eligibility to April 30, 2001. To qualify, the alien must have been physically present in the U.S. on December 21, 2000, if his application or petition was filed after January 14, 1998 but on or before April 30, 2001.
In order to benefit from the provision of Section 245(i), the alien must pay a penalty fee of $1,000 in addition to the basic fee for an adjustment of status application.
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