Section 245(i): Adjusting Status Despite an Unlawful Entry

Section 245(i) of the Immigration and Nationality Act lets certain people who are otherwise barred from adjusting status inside the United States — most commonly because they entered without inspection or worked without authorization — still apply for a green card without leaving the country, as long as they are "grandfathered" under a labor certification or immigrant visa petition filed on or before April 30, 2001, and they pay a $1,000 penalty sum. It is a narrow, date-locked exception, not a general fix for unlawful entry, and whether any individual case qualifies depends entirely on paperwork filed a quarter-century ago. If you think 245(i) might apply to you or a family member, confirm the details with USCIS or a qualified immigration attorney before relying on it.

What Section 245(i) actually does

Normally, to get a green card through "adjustment of status," you must have been inspected and admitted or paroled into the United States, and you generally cannot have worked without authorization or fallen out of lawful status. People who entered without inspection, or who violated the terms of their status, are usually required to leave the U.S. and process their green card at a U.S. consulate abroad instead — a step that can trigger the 3-year or 10-year unlawful-presence bar for anyone who has accrued significant unlawful presence.

Section 245(i) removes those particular bars for a limited group of people. If you are "grandfathered," you can file Form I-485, Application to Register Permanent Residence or Adjust Status, along with Form I-485 Supplement A and the required penalty payment, and adjust status in the United States even though you entered without inspection, worked without authorization, or otherwise fell out of status. It does not forgive every ground of inadmissibility — for example, it does not erase certain fraud, criminal, or security-related bars, which may still require a separate waiver of inadmissibility.

The grandfathering cutoff: who qualifies

Grandfathering is the heart of 245(i), and it turns almost entirely on old filing dates. According to USCIS's Policy Manual, to be grandfathered you generally need:

• A qualifying petition or labor certification. You (or the person whose petition covers you) must be the beneficiary of an immigrant visa petition (Form I-130 or I-140) or a labor certification application (former Form ETA 750) that was "properly filed" — signed, submitted, and paid for — on or before April 30, 2001, and that was "approvable when filed," meaning it was non-frivolous and met the legal requirements at the time.
• A physical-presence requirement for later filings. If that qualifying petition or labor certification was filed after January 14, 1998 (but still by the April 30, 2001 cutoff), the principal beneficiary must also have been physically present in the United States on December 21, 2000.

These dates are fixed in the statute and USCIS policy — they have not moved and are not expected to move, but you should still verify the current rule directly with USCIS, since interpretation of "properly filed" and "approvable when filed" has been shaped by policy guidance and litigation over the years.

Principal vs. derivative beneficiaries

The person actually named on the qualifying petition or labor certification is the "principal beneficiary." But grandfathering can also extend to that person's spouse and children as "derivative beneficiaries," as long as they were the principal's spouse or child at the time the qualifying petition or application was filed. Importantly, USCIS guidance recognizes that a grandfathered derivative does not need to remain married to, or still be a minor child of, the principal beneficiary later on — the relationship is locked in at the time of filing, and the derivative becomes a grandfathered person in their own right, not at the time of the eventual green card application.

Once a petition or labor certification has actually been used as the basis for someone obtaining a green card, it cannot be recycled to grandfather anyone else.

The $1,000 penalty sum

Most people using 245(i) must pay a sum required by law — $1,000, an amount set by the statute itself rather than by the changeable USCIS fee schedule — in addition to the standard Form I-485 filing fee, submitted with Form I-485 Supplement A. USCIS treats this $1,000 as a statutory eligibility requirement, not an ordinary fee. Certain categories of applicants (for example, some unmarried children under 17, and some abused spouses and children with approved self-petitions) may be exempt from this additional sum. Because exemption categories and the standard I-485 filing fee can change, confirm the current filing fee and whether you qualify for an exemption on the official Form I-485 Supplement A page and the USCIS fee schedule before filing.

245(i) does not replace the need for a current path to a green card

A common misunderstanding is that having an old grandfathering petition is, by itself, enough to get a green card. It is not. Section 245(i) only removes certain bars to adjustment — it does not create eligibility on its own. You still need a current, valid basis to immigrate: an approved family-based or employment-based petition, an approved diversity visa selection, or another qualifying category, with an immigrant visa number available to you under the Department of State Visa Bulletin. The old grandfathering petition and your current basis for a green card do not have to be the same petition — many grandfathered people ultimately adjust based on a newer petition (often filed by a spouse or employer) while relying on the old one only to unlock the ability to adjust in the United States.

What to do

1. Find the paper trail. Locate any labor certification application or immigrant visa petition (I-130 or I-140) that may have been filed on your behalf, or on behalf of a parent or spouse whose filing could cover you as a derivative, before April 30, 2001. USCIS or an accredited representative can help you request records, including through a Freedom of Information Act (FOIA) request to USCIS.
2. Determine whether it was "properly filed" and "approvable when filed." This is a legal determination that often benefits from an attorney's review, since USCIS and the Board of Immigration Appeals have issued detailed guidance on what counts.
3. Identify your current basis for a green card. Confirm you have (or can obtain) an approved petition and an available visa number, since the grandfathering petition alone will not get you a green card.
4. File Form I-485 with Form I-485 Supplement A, pay the standard filing fee plus the penalty sum (unless exempt), and include evidence of the qualifying petition or labor certification, proof of any required physical presence, and evidence supporting your current basis for adjustment.
5. If you are petitioning for a spouse, parent, or other relative who may be out of status, understand how the underlying petition process works before assuming 245(i) will apply — see our explainer on filing the I-130 petition and priority dates, and on the 3- and 10-year unlawful-presence bars that 245(i) is often used to avoid.

Deadlines and risk

There is no ongoing deadline to "use" grandfathered status once you have it — the April 30, 2001 and December 21, 2000 dates are fixed historical cutoffs, not dates you must act by today. But filing an adjustment application when you are not actually eligible, or misrepresenting facts about an old petition, can lead to denial, placement in removal proceedings, or bars on future immigration benefits. Because eligibility depends on documents and events from many years ago, and because a mistaken filing can carry serious consequences, this is an area where professional legal help is especially valuable.

Related reading

• Adjustment of Status Explained (Form I-485)
• Grounds of Inadmissibility Explained
• Waivers of Inadmissibility (I-601 and I-601A)
• The 3- and 10-Year Unlawful-Presence Bars
• The I-130 Petition and Priority Dates

Beware notario and immigration-consultant fraud. In many countries, "notario público" means a licensed attorney, but in the United States a notary public has no authority to practice immigration law. Only a licensed attorney or a representative accredited by the Department of Justice may give you legal advice or represent you before USCIS or immigration court. Verify a representative's status through EOIR's list of accredited representatives, and report suspected fraud to USCIS or your state attorney general.

This article is general legal information, not legal advice, and does not create an attorney-client relationship. Immigration cases involving unlawful entry or unauthorized work carry real risk of denial or removal — consult a qualified immigration attorney or a DOJ-accredited representative about your specific situation.