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Experts, please look into this 245(i) case.

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  • Experts, please look into this 245(i) case.

    If Tom is grandfathered under 245(i) because the LC was filed for him before 4/30/2001 and approved. Tom became out of status later. Tom's wife is always in legal status and will be able to file LC, I-140 and I-485 in future. Can tom adjust status under 245(i) at the time his wife files I-485?

  • #2
    If Tom is grandfathered under 245(i) because the LC was filed for him before 4/30/2001 and approved. Tom became out of status later. Tom's wife is always in legal status and will be able to file LC, I-140 and I-485 in future. Can tom adjust status under 245(i) at the time his wife files I-485?

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    • #3
      How did Tom become out of status, how long ago, and what did Tom do about it at the time?

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      • #4
        Tom got laid off after 4/30/2001 and his I-94 is expired. He didn't file any application for change status after he got laid off.

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        • #5
          Let me put my question in this way
          - Tom had LC filed for him and was approved before 4/30/2001
          - Tom was physically presented in US 12/21/2000.
          Therefore, I believe Tom has grandfathered under 245(i).

          Now, my question is:
          Assume Tom has been out of status after 4/30/2001.
          If Tom's wife is always in legal status and will be able to file LC, I-140 and I-485 in future. Can Tom adjust status under 245(i) at the time his wife files I-485?

          In other words, does Tom have to adjust status under his own application? Or his wife's employment-based Green Card Application could also be his basis of adjustment?

          Thank you very much!

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          • #6
            It sounds like you need a good lawyer to answer your situation. You needed to file under 245(i) long ago, but most of all you needed to comply with the expiration of your I-94. The INS has you on file and is bound to ask why not. You could be in deep trouble. Seek advice from an expert.

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            • #7
              Any application filed on or before 4/2001 are granfathered by 245(i)I'm not an expert of the law but in my opinion you will get the benefit of 245(i) when your spouse files your I-485.

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              • #8
                The due date of 245i in this article is January
                14, 1998, but at least you can get a concept of grandfathering on this article.

                http://www.rreeves.com/pub_155.htm
                The INS has consistently stated that the 245i benefit goes with the person and not with the petition. This means that, if Maria had a labor certification that was filed prior to January 14, 1998, but wants to adjust based on a different family-based petition, she can still use 245i to remain in the U.S. and get her green card. So long as Maria was eligible based on any pre-January 14, 1998 petition, she shall always retain eligibility. This means she may eventually adjust based on a marriage, based on a brother/sister petition, based on the labor certification or any other available petition.

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                • #9
                  Section 245(i) grandfathered until April 30, 2001.Don't worry Tom you are safe.

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                  • #10
                    I appreciate all your help and inputs!

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