For our final blog post series to celebrate our 75th anniversary year, we asked members to share their most dramatic or interesting 245(i) story with us. 245(i) is part of U.S. immigration law that allowed immigrants who had an unlawful immigration status to apply for a green card, but only if an employment or family-based immigrant petition was filed on their behalf by April 30, 2001. Seems straightforward enough, right? Well, like so much in the complex area of immigration law, paying attention to the technical details and following the steps perfectly are key to success. With the stakes never higher and a crescendo of urgency rising as April 30, 2001 neared, the drama was high.

Here are some of our members’ stories:

“In April 2001, I was a new paralegal and learning on the job as I handled many 245(i) cases as quickly as possible. I remember my employer telling us all to tune up our cars and be ready to drive from Louisiana to the Texas Service Center to hand-deliver cases if necessary. Mostly, I remember sitting beside the FedEx box in my office building weeping because I had forgotten to mark ‘Saturday delivery’ on a case that I was mailing out at the last minute, waiting for the FedEx guy to open the box so I could grab the envelope and fix the error. The deadline was met, and I remember very clearly that four years later I was wandering through a Target Store in Minnesota, having evacuated from Hurricane Katrina, being asked by that client about his still-pending Labor Certification.” – Sandra Feist, AILA MN-DAK Chapter

“Even though you may have thought 245(i) stories were a thing of the past, I continue to work on cases in my practice, more than 20 years later. I am fighting on behalf of a client right now whose I-485 was denied based on what U.S. Citizenship and Immigration Services (USCIS) deemed to be insufficient proof of physical presence. I pointed out that the I-130 filed by the client’s U.S. Citizen brother in December of 2000 included the I-485 applicant’s address and provided proof of property ownership at the time. It would give me great pleasure to have USCIS agree and give this whole family a sense of security and safety.” – Richard Fleischer, AILA Ohio Chapter

“This is a story of hidden 245(i) eligibility, uncovered dramatically at the 11th hour. Mrs. A is a Registered Nurse, born in the Philippines. She and her family had entered USA in 2004 as tourists and stayed beyond their status expiration. Mrs. A’s employer submitted an I-140 visa petition for her in 2005.  Based upon the approval, the family submitted applications for Adjustment of Status (AOS) under Section 245(i). The husband’s U.S. citizen brother had submitted an I-130 for him in 1988 when he was unmarried.  Their applications for adjustment of status were filed based on the following incorrect assumption: If one family member qualifies for 245(i), the whole family qualifies.

In their denial, the USCIS stated that Mrs. A, as the principal applicant, was ineligible to adjust status under 245(i) based upon the approval of her husband’s 1988 petition since they were not married at that time.  Also, she could not benefit from section 245(i) as a derivative beneficiary of her husband’s priority date since it was not current. After receiving the denial, they all but gave up their dreams of remaining in the US.

However, after detailed and persistent questioning, we learned that over 25 years ago, Mrs. A’s uncle had filed an I-130 on behalf of her mother.  At that time, Mrs. A was a child.  Therefore, she was a derivative beneficiary of the petition.  Never in her wildest imagination did Mrs. A consider that a petition filed so long ago and on behalf of her mother could be relevant to her case.  Therefore, she had never revealed this all-important fact to her attorneys. Immediately, we prepared and submitted a motion to reopen the denied cases. We showed that Mrs. A was independently eligible to adjust her status under section 245(i). Since Mrs. A was the principal beneficiary of the I-140 petition, her husband and children were also eligible to receive the benefits of section 245(i) as derivative beneficiaries.” – Carl Shusterman, AILA Southern California Chapter

 “My Filipino client been petitioned by her USC mother, and she and her husband had waited on the quota for 20 years. Our challenge was physical presence on 12/20/2000, which is a requirement for 245(i) eligibility. The couple was self-employed. They sold flowers on the streets. They kept no records, used public transit, and had no children, and never had an account at a bank or with a utility company. In December 2000 they had rented a room from a woman who had since died. In short, we had no evidence. However, they did file their taxes every year. They had lived in Daly City, California for 25 years. The fog in Daly City, which sits on a cliff over the Pacific Ocean, is legendary. It comes in June and leaves in September. Dampness hangs in the air for months. You cannot see the end of your driveway on the Fourth of July. I know, I lived there. Our only evidence was the original copy, stapled, of their 2000 Form 1040. The officer, a native of Daly City and a former local football hero, stated that a tax return was not adequate. “Anyone could print that up now from a form off the internet” he told us.  I then noticed the rust on the staple on the 1040. The rust had been absorbed into multiple pages. I displayed this. The officer asked the couple where they had stored the tax return and they told him in a cardboard box in their Daly City back shed. It was Daly City rust. The return, obviously, had been stapled together for decades. The rust has seeped through three pages. The officer, examined the staple closely. He said ‘yeah, my old tax returns look like that too’ and granted the case.” – Sheila Quinlan, AILA Northern California Chapter

 “My practice thrives on 245(i).  The farmworkers of Idaho, and their families, have few resources and are often forgotten in the legal world.

  • One client believed he had his employer submit the Form ETA 750 on his behalf in California in 2001.  It turns out, a ‘form-filling company’ notario (still in practice in California) had a copy of the form.  After some significant detective work, I had to hire an immigration attorney in California to go meet her in person for the client to buy a copy of his file (including the 245(i) eligible ETA750) and send it to my office.  Unfortunately, the client is 212(a)(9)(c) inadmissible, but his wife is not! So, we used the ETA 750 for her!
  • I had a very rural employer in Idaho submit 245(i) qualifying ETA 750s for two brothers and their friend.  The Labor Certificate was eventually approved but the employer was at a loss for how to move forward, once the priority date was current (11 years later). I was a fledgling solo attorney, having my office open for less than a year, when I took on the case – it was more than 10 people total (with the brother’s and the friend and their derivative family members).  They adjusted status at the USCIS Boise field office all at once!
  • I had a client who entered without inspection from El Salvador, his father was a USC but did not submit a petition for him until after he came to the US, in 2003.  However, I asked how the father became a USC and the client indicated it was through his uncle (also a USC), who submitted a petition for his father back in the 1980s.  I pulled the A File for my client’s father and found the original I-130 petition from 1982 with my client as a derivative (age 3).  We were able to use 245(i) plus his father’s 2003 I-130 once the priority date became current.
  • I had a group of 3 brothers, who all used form-fillers (notario) to submit their case in April 2001 through a USC brother. As evidence of the 245(i) eligibility the notario provided them each with a postage receipt dated April 30, 2001, the I-130s showed a receipt print date of May 3, 2001.  The case was denied at USCIS Boise for not qualifying.  I ordered my client’s original A file and found the micker-stamp on the bottom of my client’s I-130 that said ‘Grandfathered, received April 30, 2001’ even though the I-130 said May 3, 2001.  We won the case on a Motion to Reopen.” – Nicole Derden, AILA Idaho Chapter