What happens when your approved petition for legal status in the U.S. becomes invalid due to a government processing backlog?
Applying for legal status is inherently challenging, and the process becomes even more complex and stressful when complications arise due to government processing issues beyond one’s control.
Imagine the frustration felt by our client, Mr. M, a native of Mexico who entered the U.S. without inspection in the early 1990s. At that time, his father, a lawful permanent resident (LPR), filed a family-based visa petition (Form I-130) for him in 1994, which was approved. However, there is currently a 19-year backlog for visa petitions filed by LPRs on behalf of their unmarried adult children (see Visa Bulletin for October 2024). As a result, Mr. M’s visa could not proceed.
By the time the priority date for his petition became current, Mr. M was married, making him ineligible under his father’s original petition, which only applies to unmarried children of LPRs.
In 2018, Mr. M retained our firm after receiving a notice to appear in court in Miami. He was placed in removal proceedings after filing an asylum application with another law firm. A rapid, strategic response was essential to prevent his deportation.
After a thorough investigation, we discovered that Mr. M qualified for adjustment of status under Section 245(i) of the Immigration and Nationality Act (INA).
Section 245(i) of the INA allows certain individuals in the United States—who would not typically qualify for adjustment of status—to apply for lawful permanent residency (Green Card) regardless of :
• Their manner of entry into the U.S.;
• Unauthorized employment in the U.S.; or
• Failure to maintain continuous lawful status since entry.
To qualify under this provision, an individual must be the beneficiary of an immigrant visa petition, such as Form I-130 (Petition for Alien Relative), filed on or before April 30, 2001 (visit Uscis.gov Card through INA 245(i) Adjustment for details). Applicants must complete Supplement A to Form I-485, Application to Register Permanent Residence or Adjust Status, and submit it with Form I-485, typically along with an additional $1,000 fee.
Although Mr. M’s father’s petition was no longer active, it was filed in 1994—seven years before the 245(i) deadline in 2001. We argued that the petition conferred 245(i) benefits to Mr. M, enabling him to adjust his status in the U.S.
Since Mr. M was no longer eligible for adjustment based on his father’s petition due to his marital status, his U.S. citizen daughter, who had recently turned 21, filed a new I-130 petition on his behalf.
After the new I-130 petition filed by Mr. M’s daughter was approved, we filed a motion to dismiss Mr. M’s removal proceedings in court, effectively halting deportation efforts.
Once the dismissal motion was granted, we submitted Mr. M’s application for adjustment of status to USCIS under Section 245(i). Our legal team argued that, although Mr. M could not adjust status directly through his father’s petition, the priority date of that petition still conferred 245(i) benefits, making him eligible to adjust status under his daughter’s new petition.
Since Mr. M’s spouse also entered the U.S. without inspection, we filed a separate adjustment of status application on her behalf. We argued that, under 245(i), Mr. M’s spouse could “accompany” or “follow-to-join” him as a derivative applicant. A spouse or child is considered to be “accompanying” the principal applicant if they seek adjustment together or within six months of the principal’s approval. Since Mr. M and his spouse applied together, her adjustment application was submitted simultaneously with his.
On September 27, 2024, after residing in the United States without lawful status for over 30 years, Mr. M and his spouse were granted lawful permanent residency. This milestone was marked with heartfelt emotions, as Mr. M celebrated the end of a long journey toward legal status.
Mr. M’s story is a testament to hope and resilience, embodying our mission at DeMine Immigration. We hope it serves as an inspiration to our readers.
Ready to take the next step?
Do you have an old petition filed by a family member that may qualify you for 245(i) benefits? Or are you facing challenges due to the expiration of an old petition?
At DeMine Immigration, we’re committed to helping young individuals navigate the complex immigration process with compassionate, expert guidance tailored to their unique needs.
Contact us to schedule a consultation, and let our team support you every step of the way.
Schedule a consultation with our experienced team .