Why entry without inspection normally prevents INA §245(a) adjustment
Ordinary INA §245(a) generally requires the applicant to have been:
- Inspected and admitted; or
- Inspected and paroled into the United States.
A person who crossed the border without inspection ordinarily cannot satisfy that threshold solely through later residence, marriage, employment, or approval of an immigrant petition.
INA §245(i) expressly covers entry without inspection
INA §245(i)(1) begins with unusually powerful language: “Notwithstanding” subsections (a) and (c).
The statute then expressly permits a qualifying person who:
- Is physically present in the United States;
- Entered the United States without inspection; and
- Meets the grandfathering requirements
to apply for adjustment.
A qualifying grandfathered applicant does not need to manufacture a later admission or parole merely to overcome the original entry-without-inspection problem under §245(a).
Entry without inspection alone does not create §245(i) eligibility
The person must still be grandfathered through a qualifying immigrant petition or permanent labor certification filed by April 30, 2001.
The grandfathering analysis generally requires:
- A qualifying petition or labor certification;
- Proper filing by April 30, 2001;
- Approvable-when-filed status;
- Principal or qualifying derivative beneficiary status; and
- December 21, 2000 physical presence for the principal when the qualifying filing was after January 14, 1998.
The old grandfathering case does not have to be the immigrant case used today
A grandfathered applicant can potentially adjust using a later:
- U.S. citizen spouse I-130;
- Family-preference I-130;
- EB-1 petition;
- EB-2 NIW;
- Employer-sponsored EB-2 or EB-3 petition;
- EB-5 petition;
- Special immigrant petition;
- Diversity Visa selection; or
- Other proper immigrant basis.
The old filing establishes access to §245(i). The current petition establishes today's immigrant classification and visa eligibility.
The §245(i) applicant must be physically present in the United States
Current 8 C.F.R. §245.10(b)(1) requires the applicant seeking adjustment under §245(i) to be physically present in the United States.
This is separate from the historical December 21, 2000 physical-presence requirement.
| Physical-Presence Rule | Purpose |
|---|---|
| Physically present when seeking §245(i) adjustment | Current eligibility requirement for the applicant. |
| Physically present December 21, 2000 | Historical grandfathering requirement for certain principal beneficiaries of post-January 14, 1998 filings. |
Section 245(i) still requires admissibility for permanent residence
INA §245(i)(2)(A) expressly requires the applicant to be admissible to the United States for permanent residence.
Current regulation likewise requires that the applicant either:
- Not be inadmissible under INA §212; or
- Have every applicable inadmissibility ground waived through available statutory authority.
What about INA §212(a)(6)(A)(i) for presence without admission or parole?
The statutory structure of §245(i) specifically contemplates adjustment by qualifying applicants who entered without inspection.
That is why a simple entry-without-inspection problem does not make §245(i) meaningless merely because the person is physically present without having been admitted or paroled.
Matter of Briones discusses this statutory history and explains that Congress designed §245(i) to permit qualifying EWI applicants to adjust while still requiring them to satisfy separate inadmissibility provisions.
The ordinary EWI condition is the problem §245(i) directly addresses. Independent inadmissibility created by additional conduct remains separately controlling.
Departure after an entry without inspection can radically change the case
A person who entered without inspection and remained continuously in the United States presents a different legal history from a person who:
- Entered without inspection;
- Accrued unlawful presence;
- Departed;
- Returned without admission; and
- Later seeks §245(i) adjustment.
The second history can implicate INA §212(a)(9)(B), §212(a)(9)(C), prior-removal grounds, or multiple inadmissibility provisions.
INA §212(a)(9)(B): unlawful presence followed by departure
The three- and ten-year unlawful-presence bars generally require a departure after the applicable period of unlawful presence has accrued.
A person can therefore be grandfathered under §245(i) yet separately become inadmissible after leaving the United States.
Matter of Lemus holds that §245(i) does not itself waive the ten-year unlawful-presence bar under INA §212(a)(9)(B)(i)(II).
INA §212(a)(9)(C): unlawful reentry after specified immigration history
Section 212(a)(9)(C)(i)(I) can apply where a person:
- Accrued more than one year of aggregate unlawful presence;
- Departed the United States; and
- Later entered or attempted to enter without being admitted.
Section 212(a)(9)(C)(i)(II) separately addresses certain unlawful returns after an order of removal.
Matter of Briones: the leading §245(i) permanent-bar decision
Matter of Briones, 24 I&N Dec. 355 (BIA 2007), addressed a grandfathered applicant who had entered the United States without inspection after previously accruing more than one year of unlawful presence.
The BIA held that:
- INA §212(a)(9)(C)(i)(I) applies to the recidivist immigration conduct described in the statute;
- The applicant was inadmissible under that provision; and
- INA §245(i) did not waive or override that inadmissibility.
Section 245(i) permits adjustment notwithstanding EWI and specified §245(c) problems, but the applicant must still independently satisfy §245(i)(2)(A)'s admissibility requirement.
Prior removal orders require separate analysis
A person who entered without inspection may also have:
- An old deportation order;
- An in absentia removal order;
- An expedited-removal order;
- A reinstated removal order;
- A voluntary departure history;
- A prior physical removal; or
- An unlawful return after removal.
These facts can implicate:
- INA §212(a)(9)(A);
- INA §212(a)(9)(C);
- INA §241(a)(5) reinstatement;
- Form I-212 issues; and
- USCIS versus immigration-court jurisdiction.
Fraud, false claims, and smuggling remain separate issues
Entry without inspection and fraud are not synonymous.
A person who crossed without inspection may have no fraud ground at all. But other conduct can create separate inadmissibility, including:
- False statements to immigration officials;
- Fraudulent visa applications;
- False documents;
- False claim to U.S. citizenship;
- Alien smuggling; or
- Misrepresentations in later immigration filings.
Unauthorized employment can also be overcome by §245(i)
Section 245(i) applies notwithstanding INA §245(c), which includes important unauthorized-employment restrictions.
A properly grandfathered person who entered without inspection and also worked without authorization can therefore potentially use §245(i) to overcome both adjustment barriers.
Failure to maintain lawful status can also fall within §245(i)
A person who entered lawfully and later fell out of status can potentially use §245(i), and a person who entered without inspection may have additional periods or classifications requiring historical review.
Section 245(i)'s “notwithstanding” language allows qualifying grandfathered applicants to overcome specified §245(c) restrictions.
Form I-485, Supplement A, and the additional statutory sum
Current 8 C.F.R. §245.10(b) requires a §245(i) applicant to properly file:
- Form I-485;
- Supplement A to Form I-485; and
- The additional $1,000 statutory sum unless a regulatory exception applies.
The ordinary I-485 filing fee is separate from the additional §245(i) amount.
Entry without inspection and removal proceedings
Many long-term §245(i) applicants have prior or current immigration court histories.
Potential issues include:
- Whether proceedings are pending;
- Whether USCIS or the immigration judge has adjustment jurisdiction;
- Whether there is a final removal order;
- Whether proceedings were dismissed or terminated;
- Whether adjustment can be renewed before the immigration judge;
- Whether reopening is required; and
- Whether an old order creates separate inadmissibility.
Eligibility under §245(i) does not itself determine whether USCIS or EOIR has authority to adjudicate the I-485.
Evidence checklist for an EWI §245(i) case
| Evidence | Purpose |
|---|---|
| Qualifying pre-April 30, 2001 petition or labor certification | Establishes grandfathering. |
| Approvable-when-filed evidence | Shows historical filing was legally viable. |
| December 21, 2000 evidence | Required for certain post-Jan. 14, 1998 principal filings. |
| Current immigrant petition | Establishes present immigrant classification. |
| Visa Bulletin evidence | Establishes immediate visa availability where numerically required. |
| Complete entry and departure chronology | Identifies EWI, departures, returns, and possible §212(a)(9) grounds. |
| Passports / I-94 records | Corroborates lawful and unlawful entry history. |
| Removal records | Identifies prior orders and §212(a)(9)(A)/(C) issues. |
| Employment history | Identifies unauthorized work and §245(c) issues. |
| Criminal records | Permits separate admissibility analysis. |
| Form I-485 | Current adjustment application. |
| Supplement A | Requests §245(i) consideration. |
| Additional statutory sum | Required unless a regulatory exception applies. |
Examples
| Scenario | Potential Result |
|---|---|
| Grandfathered applicant entered once without inspection in 1999 and never departed | §245(i) can potentially overcome the §245(a) admission problem if all other requirements are met. |
| Grandfathered applicant entered without inspection and worked without authorization | §245(i) can potentially overcome both EWI and specified §245(c) employment bars. |
| Grandfathered applicant accrued one year unlawful presence, departed, then reentered without admission | Potential §212(a)(9)(C)(i)(I) inadmissibility; Matter of Briones holds §245(i) does not overcome it. |
| Grandfathered applicant accrued one year unlawful presence, departed, then later seeks adjustment | Separate §212(a)(9)(B) analysis required; grandfathering does not itself waive the unlawful-presence bar. |
| Grandfathered applicant has old removal order and later EWI | Must analyze §212(a)(9)(A), §212(a)(9)(C), reinstatement, jurisdiction, and any required permission to reapply. |
| Grandfathered applicant later marries U.S. citizen | Current spouse I-130 can potentially supply immigrant basis while old filing supplies §245(i) grandfathering. |
Frequently asked questions
Can I adjust status if I entered without inspection?
Potentially yes under INA §245(i) if you are properly grandfathered and satisfy all remaining requirements. Other adjustment statutes can also contain their own specialized rules, but ordinary §245(a) generally requires admission or parole.
Does marriage to a U.S. citizen fix entry without inspection?
Marriage alone does not supply the admission required by ordinary §245(a). A grandfathered person may potentially use §245(i) with the U.S. citizen spouse's I-130 as the current immigrant basis.
Do I have to leave the United States before filing under §245(i)?
No solely to cure the original entry-without-inspection problem. Section 245(i) specifically permits qualifying applicants physically present in the United States after EWI to apply for adjustment.
Does §245(i) waive unlawful presence?
No. Grandfathering does not prevent unlawful-presence accrual, and departure can activate INA §212(a)(9)(B). A separate waiver may be required if one is available.
Does §245(i) waive the permanent bar under §212(a)(9)(C)?
No. Matter of Briones and Matter of Diaz and Lopez hold that §245(i) does not overcome inadmissibility under §212(a)(9)(C).
I entered without inspection only once and never left. Does §212(a)(9)(C) automatically apply?
No. Section 212(a)(9)(C)(i)(I) generally requires the specified prior unlawful-presence history followed by a departure and later unlawful entry or attempted unlawful entry. The complete chronology controls.
Does §245(i) waive unauthorized employment?
It can permit adjustment notwithstanding specified §245(c) unauthorized-employment restrictions, but that is different from a waiver of every possible immigration consequence arising from employment.
Do I need Supplement A?
Yes when requesting adjustment under §245(i). Current 8 C.F.R. §245.10(b) requires Supplement A along with the I-485 and the additional statutory sum unless an exception applies.