Adjustment of Immigration Status: Proving Admission or 245(i) Eligibility
The process of obtaining a green card through a spouse or petitioning family member is known as adjustment of status. The family member filing the petition is the petitioner and the person being sponsored is the beneficiary. In order to qualify for adjustment of status, or a green card, the beneficiary must have been admitted to the United States. An admission means you were inspected - most likely by a border patrol officer - and gained entry into the country, whether it was for business or as a visitor for pleasure. Because admission is vital to your eligibility for relief, it is important to keep your visa, I-94 card, or any other record of your arrival to the United States. Otherwise, your entry will be considered entry without inspection, or EWI, and might complicate your process of adjusting, obtaining your green card, and eventually becoming a naturalized citizen.
Section 245(i) of the Immigration and Nationality Act
Fortunately, immigration law does include some exceptions. If you were never admitted, you may still be eligible for relief. Under Section 245(i) of the Immigration and Nationality Act, you can still adjust your status and get a green card if you were the beneficiary of a petition filed on or before April 1, 2001. Perhaps a family member previously petitioned for a labor certification, was sponsored at work, or applied to adjust her status as you are doing now? Perhaps you have lived here so long, you applied for some immigration benefit? If so, you are covered under Section 245(i), even if your efforts failed and your application was denied. You must present proof that the previous application was filed before this date to receive protection under this law and take advantage of this form of relief.
Adjusting Immigration Status after a "Lost" Status
Being able to adjust your status and obtain a green card in the United States has its advantages because most applicants have already established a life here through family or work. However, you may not have this option if, at any time between your arrival and petition, you “lost” your status. You can lose or “fall out of status” by working here without employment authorization or letting your visa expire. Therefore, it is important to renew your visa or your employment authorization card. Do not let your status lapse.
If you have fallen out of status, you may nevertheless adjust your status, but not in the United States. The process of leaving the country and having your petition adjudicated outside the United States is known as consular processing. You are required to return to your country of origin and petition to adjust your status through the American Embassy there. This can take a long time and you may be barred from returning to the United States for 3 to 10 years, depending on how long you were out of status or without a visa. You may also be able to participate in a process called the green card lottery while in your native country.
Consult an Immigration Attorney
Maintaining your status and getting a green card are serious issues and can affect your life and employment here in the United States. You should consult an immigration attorney to guide you through the various immigration laws and help you find the best way to adjust your status while avoiding the unlawful presence bar.