Many Marriage Based Applicants Do Not Need Section 245(i)!
March 30, 2001

Headlines like the one appearing in the Chicago Sun Times last week describing the last minute, rushed plans of Chicago area couples to marry in order to beat the April 30 INS deadline, create panic and confusion in the minds of many in the immigrant community. Of course, for many in the undocumented or illegal immigrant population, rushing their marriage to a U.S. citizen or permanent resident and submitting paperwork with the appropriate INS office prior to April 30 is a must. But for many other couples intent on marrying, the commotion is for nothing and the April 30 deadline is of no relevance. Why?

For individuals seeking to obtain immigration benefits through marriage to a U.S. citizen, a rush to marry and submit the appropriate paperwork prior to April 30, 2001 really only applies to certain classes of undocumented individuals: such as those who entered the U.S. a) without inspection (no visa), b) as a crewman or “jumped ship”, or c) “in transit without a visa”. These individuals need Section 245(i) and the right to pay a $1,000.00 penalty upon the filing of documentation. That is because, without Section 245(i), they would be unable to undergo immigrant processing in the U.S. and would otherwise be forced to return to their home country to undergo U.S. consular processing there. (Such a departure out of the U.S. generally will guarantee that the undocumented individual will not be returning to the U.S. for many years) With Section 245(i) these undocumented individuals are eligible to submit a “one-stop”, I-485 Adjustment of Status package with their local INS office, obtain an Employment Authorization Document within 90 days of filing, and eventually be scheduled for an interview (in about 2 to 2 ½ years for Chicago area applicants).

Spouses of lawful permanent residents (“immigrants”) who entered the U.S. in one of the above categories ((a) through (c)) also must commence a filing prior to April 30, except that they are only eligible to have an I-130 Alien Relative Petition filed on their behalf at an INS Service Center. For Chicago area applicants, the Nebraska Service Center is the appropriate place of filing. And it is only after 4 to 5 years, or after the permanent resident spouse becomes a U.S. citizen, that the I-485 Adjustment of Status process can be commenced (and employment authorization issued) at a local INS office. Importantly, it is not until this latter Adjustment of Status phase that the $1,000 penalty gets paid. No $1,000 payment need accompany an I-130 petition submitted with the Nebraska Service Center, only the $110.00 filing fee.

In addition to spouses of U.S. citizens, the under 21 year old children of U.S. citizens and the parents of adult (over 21) U.S. citizens are also eligible to submit a one-stop adjustment of status package with their local INS office. However, again, only if the applicant entered into the U.S. in one of the classes outlined (a) through (c) above, is the need to submit paperwork before April 30 an issue.

Those That Do Not Need Section 245(i)

If you entered the U.S. on most any type of visa (excluding K-1 Fiance), such as a B-1/B-2 tourist/visitor, F-1 student or H-1 worker, and merely overstayed or worked without authorization, your eligibility to adjust your status in the U.S. based on a) a marriage to a U.S. citizen, b) as the under 21 year old child of a citizen, or c) parent of an adult U.S. citizen, CONTINUES. This is the case no matter how long the individual has overstayed or has worked without authorization, just as long as the individual has not yet been ordered deported by an Immigration Judge. This has been the law prior to the enactment of Section 245(i) and it will not go away after April 30. These classes of applicants need not pay the penalty of $1,000.00 at any time. Repeat, those classes of individuals mentioned in this paragraph do not need to pay a $1,000 penalty upon filing.

For those visa overstays who are married to or will be married to a lawful permanent resident, no rush to file documentation is needed, as long as the permanent resident spouse eventually becomes a U.S. citizen. Once that event takes place the applicant for immigration benefits is eligible to proceed to file their adjustment of status paperwork with INS Chicago, and again, this filing can take place after April 30 and without the payment of the $1,000 penalty. Those who want to play it safe may want to have their permanent resident spouse file an I-130 Alien Relative Petition on their behalf prior to April 30 just in case the petitioning spouse does not or cannot become a U.S. citizen. As mentioned above, this petition gets filed with INS Nebraska, and only after a visa becomes available in the Family Second Preference category (5 years or so), will the alien spouse be eligible to proceed to file the final phase, adjustment of status package with their local INS office. On the other hand, once the petitioning spouse becomes a U.S. citizen, the adjustment of status phase can be immediately instituted at their local INS office.

New Poverty Guidelines for Affidavits of Support Submitted As of April 1, 2001

For those supplying I-864 Affidavits of Support for a family based immigrant visa or adjustment of status applicant, new income requirements will be in effect starting April 1, 2001.

For All U.S. States, excluding Alaska and Hawaii, those supplying Affidavits of Support must demonstrate income above the following cut-offs (125% of the poverty level)

Size of Family Unit Income Requirement
1 $10,738
2 $14,513
3 $18,288
4 $22,063
5 $25,838
6 $29,613
7 $33,318
8 $37,163

For family units with more than 8 members, add $3,775 for each additional member in arriving at applicable income requirement cut off.

Copyright © 2001-2008, By Law Offices of Richard Hanus, Chicago, Illinois