Few questions reach my desk more often than: “Can I get my residency without leaving the U.S.?”
For a small—but still significant—group of immigrants, the answer is yes, thanks to an often-forgotten provision of law known as INA § 245(i). Below you’ll find a practical, lawyer-tested roadmap explaining:
At JLW Immigration Law Group, we have attorneys who specialize in Adjustment of Status in Austin. We invite you to learn more about these services.
Most people who entered the U.S. without inspection, overstayed a visa, or worked without authorization must finish their residency case at a U.S. consulate abroad. That path:
Section 245(i) waives those hurdles for eligible applicants, allowing them to file Form I-485 (Adjustment of Status) entirely inside the U.S.—no unlawful status waivers, no airport good-byes, no consular uncertainty.
| Requirement | What It Means in Plain English |
|---|---|
| 1. Qualifying Petition | You (or certain family members) must be the beneficiary of an I-130, I-140, or labor-certification filed on or before April 30, 2001. |
| 2. Physical Presence Cut-Off | If the petition was filed after January 1, 1998 but on or before April 30, 2001, you must prove you were physically present in the U.S. on or before December 21, 2000. |
| 3. General Eligibility | No permanent bars, no disqualifying crimes, must have currently valid qualifying relative petitioner |
| 4. Supplement A + $1,000 Penalty | File Form I-485 Supplement A and pay the $1,000 penalty fee when you submit your adjustment packet. |
These requirements are mandatory. The § 245(i) door slams shut if you miss even one element.
You may qualify even if the 2001-era petition no longer applies or is not about you personally.
| Petition Filed Before 04/30/2001 | Who Qualifies Today |
|---|---|
| You were the named beneficiary | You remain qualified—even if the petitioner died, divorced, or your priority date is no longer current. |
| Petition named your spouse (current, ex, or former) | You qualify as a spouse or ex-spouse, provided the marriage validly existed when the petition was filed. |
| Petition named your parent | You qualify if you were unmarried and under 21 on the filing date. |
| Petition named your step-parent/adoptive parent | Possible, but additional relationship rules apply—get legal advice. |
Important: You may have to use § 245(i) to adjust through an entirely different, current petition (e.g., from a new U.S.-citizen spouse or 21-year-old child). The old petition for you or your relative serves as the ticket through the door of adjustment of status.
Acceptable proof for physical presence on Dec 21, 2000 may include:
One solid piece is often enough, but I like to send two or three.
| Scenario | Why It Work |
|---|---|
| Divorced ex-spouse wins big – 1997: U.S. citizen father files I-130 for his married daughter, Ana. – 2000: Ana divorces Julio. – 2025: Julio remarries a U.S. citizen and uses old I-130 to AOS through new spouse. Result: Julio adjusts via his new wife in spite of his unlawful entry because he was Ana’s spouse when her father filed in 1997. | Ex-spouses are grandfathered if the marriage existed on the filing date. |
| Adult child piggybacks on mom’s petition – 1997: Aunt (U.S. citizen) files for Ana. – 2025: Ana’s daughter April (now 27) marries a U.S. citizen. Result: April adjusts in the U.S. through her husband—even though she entered EWI—thanks to her aunt’s 1997 filing. | April was under 21 & single when the aunt filed; that locks in § 245(i) |
| U.S.-born child sponsors parents – 30 Apr 2001: Ana’s father files I-130. – 1999: April is born in Texas. – 2020: April turns 21 and petitions both parents. Result: Ana & Julio adjust together; they also show physical presence on 21 Dec 2000 via April’s 1999 Texas birth certificate. | New petitioner (adult child) + old I-130 ticket + physical-presence proof. |
| After-Acquired Spouse still benefits – 1996: U.S. father files I-130 for Ana (single, 22). – 1998: Ana marries Julio inside the U.S. – 2025: Category finally current. Result: Ana adjusts as principal; Julio files as her after-acquired spouse within six months and adjusts too. | “Accompanying or following to join” rule extends § 245(i) to new spouse. |
(Names and dates in these illustrations are fictional but mirror real cases we handle.)
Pro tip: Organize everything in a three-tab binder—Old Petition | New Petition | Statutory Proof—with a cover letter walking the officer through each exhibit.
Does § 245(i) forgive the 10-year bar for prior deportation?
No. Prior removal orders or re-entries after deportation require separate waivers and, in some cases, are non-waivable.
My 2001 petition was denied—am I still grandfathered?
Yes, if it was “approvable when filed” (proper fee, bona fide qualifying relationship, no fraud). A technical denial years later doesn’t necessarily destroy eligibility.
Can I travel abroad on advance parole while my § 245(i) case is pending?
Often, yes—but get individualized advice. Departing under some circumstances can backfire.
What if I lost the 20-year-old I-797 receipt?
If you can locate the case on USCIS.gov, you can use a print out from there. Alternatively, FOIA the USCIS file or ask the old petitioner for copies; in employment cases, the Department of Labor can sometimes reprint the labor-cert approval.
If you suspect a decades-old petition might unlock § 245(i) for you, don’t guess. A short strategy session with an experienced lawyer can confirm eligibility, map out timelines, and flag pitfalls before USCIS does.
You can see all the information in video
Our immigration law firm in Austin has specialists who, regardless of your situation, can provide the guidance needed to help you legally fight for your right to remain in the United States. Contact us now
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