Why the U.S. Immigration System Should Make a New 245(i) Adjustment Program but with a Higher Fee

Written By Meghan M. Phillips, Esq.[1]

Currently under U.S. immigration law, if a noncitizen has entered the United States without inspection (EWI) or unlawfully, they are unable to adjust their status to that of a lawful permanent resident (green card holder) unless they qualify for adjustment under section 245(i) of the Immigration and Nationality Act (INA). This section, “enables certain individuals who are present in the United States who would not normally qualify to apply for adjustment of status in the United States to obtain lawful permanent residence (get a Green Card) regardless of: (1) the manner they entered the United States; (2) Working in the United States without authorization; or (3) Failing to continuously maintain lawful status since entry.”[1] However, to qualify, they must prove they:

1. Are the beneficiary of a qualified immigrant petition (Form I-130 or I-140) or application for labor certification (Form ETA-750) filed on or before April 30, 2001;
2. Were physically present in the United States on Dec. 21, 2000, if they are the principal beneficiary and the petition was filed between Jan. 15, 1998, and April 30, 2001;
3. Are currently the beneficiary of a qualifying immigrant petition (either the original Form I-130 or I-140 through which they are grandfathered or through a subsequently filed immigrant petition) or an application for labor certification;
4. Are physically present in the United States at the time they file Form I-485 and Supplement A;
5. Have a visa immediately available to them;
6. Are admissible to the United States or eligible for a waiver of inadmissibility or another form of relief; and
7. Warrant the favorable exercise of discretion.[2]

They must also pay a fee of 1000 dollars with this application.[3]

As one can see, under the first and second requirements, adjustment under this provision is limited by two sunset dates; that is, a person has to have had an immigrant petition or labor certification that was filed on their behalf before April 30, 2001, and they must have also been physically present in the United States on December 21, 2000. In other words, adjustment under this provision is extremely limited, and only those who have “grandfathered” status qualify.

So what can those who have entered without inspection or who have failed to maintain lawful presence in the United States do to become lawful permanent residents if they do not meet the 245(i) sunset date requirements? Currently, even immediate relatives of a U.S. citizen such as a spouse, son, or daughter cannot adjust status in the United States. Rather, they must file for a waiver to forgive their unlawful entry and presence and consular process, which means they must exit the United States and have an interview at a U.S. consulate in another country.

Current processing times and fees for a provisional unlawful presence waiver (one filed before leaving the United States for a consular interview) are 34 months and 715 dollars, while other waivers for grounds of inadmissibility (one that is filed if one has already left the United States, thus activating the unlawful presence bar to return) are 27.5 months and 930 dollars.[4] Additionally, consular processing also has several fees and can take several months or even years, depending on the consulate and security checks required. In short, there is nothing short or inexpensive about this process. Combine this with the uncertainty of having a relative or key employee stuck outside the country for an indefinite amount of time with no guarantee that the visa will be approved, this creates untold stress not only on the applicant but also American families and businesses.

The United States is experiencing a labor shortage, which is partially exacerbated by low immigration levels, and which is resulting in several negative effects including inflation, reduced output and lost opportunity costs for companies, adverse impacts on supply chains, and increased strain on key sectors like agriculture, the food industry, science, technology, engineering, mathematics, healthcare, transportation, ports, and warehouses.[5] The State Department, the United States Citizenship and Immigration Services (USCIS) under the Department of Homeland Security, and immigration courts under the Department of Justice, are experiencing enormous backlogs.[6] In 2020, USCIS also experience a severe budget shortfall, causing the agency to ask Congress to provide it 1.2 billion to avoid furloughing 15,000 of its 18,700 employees; it also proposed enormous fee hikes for applications such as naturalization. [7] U.S. immigration laws need to change to reverse these trends, but immigration legislation has largely stalled in Congress and experts do not predict any significant changes to immigration policy after the recent November 2022 midterm elections.[1]

Therefore, to address these issues, I propose that one major immigration law or policy change should be to re-introduce 245(i) adjustment without the sunset dates, but with the caveat that the fee for such an application should substantially increase from its current 1,000 dollar level to be perhaps as high as 5,000 dollars. Families and business-owners desperate to have greater certainty and avoid separation from their immigrant family members or employees would likely be willing to pay an increased fee to avoid the long wait times and the need for the immigrant to consular process outside the United States. 

The higher fee would serve to ameliorate the budget shortfalls and increase the immigration system’s financial ability to be better staffed so as to deal with its enormous backlogs. It would also serve as a greater penalty to waive or pardon the immigrant’s unlawful presence or entry, commensurate with the U.S.’s desire to disincentivize unlawful entry and presence, unlike the current 3 and 10-year bars to re-entry, which counterintuitively caused a significant increase in the undocumented population.[2] In fact, the National Immigration Forum estimated in 2021 that if Congress were to cancel or extend the 245(i) deadline, this would allow 2.3 million unauthorized immigrants to become eligible for adjustment of status.[3] This would help millions of ensure their family unity, ensure migrants have an incentive to become documented and comply with immigration law, and help businesses hire the labor and candidates they desperately want and need, all while improving and funding our backlogged and overloaded immigration system. Therefore, I urge politicians and policy-makers to consider reinstating or instituting a new 245(i) adjustment program.

At VFN Immigrants First, we have three licensed immigration attorneys who are admitted to practice both by state bars and EOIR. We would be happy to help you find the best legal strategy to meet your immigration goals and help you determine if the recession of Matter of Z-R-Z-C-, will allow you to travel with advance permission and if you are eligible to adjust your status to that of a lawful permanent resident now, or in the future.

Please give us a call at 703-369-4738,visit our website, vfnlaw.com, email: mphillips@vfnlaw.com, or stop by our office at 9200 Church Street, Suite 400, in Manassas, Virginia, to learn more or make an appointment for a consultation.

[1] Meghan M. Phillips, Esq., is an associate immigration lawyer with the Immigration Law Practice Group, Immigrants First, at Vanderpool, Frostick & Nishanian, PC. She primarily handles family and humanitarian immigration, Special Immigrant Juvenile custody, and removal defense and appeal cases. She is a member of the Virginia State Bar and admitted to practice before the U.S. immigration courts (EOIR), the Eastern District of Virginia Court, and the Fourth Circuit Court of Appeals.

[2] United States Citizenship and Immigration Services (USCIS) Webpage, Green Card through INA 245(i) Adjustment, November 29, 2021, available at: https://www.uscis.gov/green-card/green-card-eligibility/green-card-through-ina-245i-adjustment.

[3]Id.; see also, INA § 245(i).

[4]Id.

[5] United States Citizenship and Immigration Services (USCIS) Webpage, Check Case Processing Times, available at: https://egov.uscis.gov/processing-times/; United States Citizenship and Immigration Services (USCIS) Webpage, I-601A, Application for Provisional Unlawful Presence Waiver, May 9, 2022, available at: https://www.uscis.gov/i-601a; United States Citizenship and Immigration Services (USCIS) Webpage, I-601, Application Waiver of Grounds of Inadmissibility, November 22, 2022, available at: https://www.uscis.gov/i-601.

[6] Arturo Casellanos-Canales, National Immigration Forum, America’s Labor Shortage: How Low Immigration Levels Accentuated the Problem and How Immigration Can Fix It, February 28, 2022, available at: https://immigrationforum.org/article/americas-labor-shortage-how-low-immigration-levels-accentuated-the-problem-and-how-immigration-can-fix-it/.

[7] Aline Barros, VOA, Analysts Don’t Expect Significant Changes in Immigration Policy After the Midterms, November 3, 2022, available at: https://www.voanews.com/a/analysts-don-t-expect-significant-changes-in-immigration-policy-after-the-midterms/6819069.html.

[8] Sarah Piece and Doris Meissner, Migration Policy Institute, USCIS Budget Implosion Owes to Far More than the Pandemic, June 2020, available at: https://www.migrationpolicy.org/news/uscis-severe-budget-shortfall.

This blog post is not intended to provide legal advice or substitute for the advice of legal counsel with respect to specific facts and situations. See disclaimer