Section 245(i) Grandfathering: How a Petition Filed On or Before April 30, 2001 Can Still Open a Green Card Path Without Leaving the United States

Why a Petition Filed 25 Years Ago Still Matters Today

Every week in my Massachusetts practice, someone walks into my office certain they have no path to a green card without leaving the United States. They entered without inspection, or they overstayed a visa years ago, or they worked without authorization. They assume they must return to Brazil, Haiti, El Salvador, or another home country and face the 3-year or 10-year unlawful presence bars under INA 212(a)(9)(B). For many people, that assumption is correct. But for a meaningful number of long-term immigrants, an old labor certification or an old family petition filed on or before April 30, 2001 can change everything.

The legal mechanism is Section 245(i) of the Immigration and Nationality Act. The shorthand is grandfathering. In simple terms, if you (or in some cases your parent or spouse) were the beneficiary of an immigrant visa petition or a permanent labor certification application that was properly filed and approvable on or before April 30, 2001, you carry a special form of eligibility with you for the rest of your life. You can adjust status to a green card inside the United States, without leaving, even if you entered without inspection or worked without authorization, as long as you pay a $1,000 penalty fee and meet the other requirements.

This article walks through how 245(i) works, who is grandfathered, what the December 21, 2000 physical presence rule requires, how derivative spouses and children fit in, and what the costs and risks of filing look like in 2026. If you have ever heard a relative mention an old papelada filed by a parent, an uncle, a former employer, or anyone else before 2001, this guide is for you.

The Statute: What INA Section 245(i) Actually Says

INA 245(i) was originally enacted in 1994 as a temporary provision and was substantially modified and extended by the Legal Immigration Family Equity Act (LIFE Act) Amendments of 2000, Public Law 106-554. The LIFE Act Amendments set the final filing deadline at April 30, 2001 and have not been extended since. The implementing regulation is at 8 CFR 245.10, and the operational guidance is in the USCIS Policy Manual, Volume 7, Part C.

The statute lets a person whose adjustment of status would otherwise be barred under INA 245(a) or INA 245(c) apply for a green card inside the United States as long as four key conditions are met. The applicant must be the beneficiary of a qualifying immigrant visa petition or a permanent labor certification application that was properly filed and approvable when filed on or before April 30, 2001. The applicant must be physically present in the United States when adjustment is granted. A visa number must be immediately available in the relevant family or employment preference category. The applicant must pay the Supplement A penalty fee of $1,000, with a limited exemption for children under 17.

The Four Grounds 245(i) Overcomes

To understand why 245(i) is so powerful, it helps to know what bars it lifts. Section 245(a) generally requires that an adjustment applicant have been inspected and admitted or paroled into the United States. Section 245(c) layers on additional bars. The USCIS Policy Manual identifies the key bars that 245(i) overcomes, and they map onto the most common situations my clients face.

The first is the inspection bar. People who entered without inspection (often described as EWI) are barred from 245(a) adjustment. 245(i) lifts that bar.

The second is the alien crewman bar. People who last entered as a D visa crewmember (such as a sailor on a cargo ship who jumped ship in Boston) cannot adjust under 245(a). 245(i) provides a way through.

The third is the unauthorized employment bar. People who have worked in the United States without authorization at any time are usually barred from 245(a) adjustment. 245(i) overcomes that bar.

The fourth is the failure-to-maintain-status bar. People who fell out of valid nonimmigrant status (for example, by overstaying a B-2 visitor visa) are usually barred from 245(a) adjustment. 245(i) provides relief.

The Heart of the Matter: Who Is Grandfathered?

To benefit from 245(i), you must be a grandfathered alien under 8 CFR 245.10. There are two ways to be grandfathered: as a principal beneficiary or as a derivative beneficiary.

Principal Beneficiaries

You are a grandfathered principal beneficiary if you were named as the beneficiary of one of the following filings, and that filing was properly filed and approvable when filed on or before April 30, 2001:

• An immigrant visa petition (Form I-130 filed by a U.S. citizen or lawful permanent resident relative, or Form I-140 filed by an employer)
• A permanent labor certification application (the old paper Form ETA 750 filed with the U.S. Department of Labor before PERM)

Derivative Beneficiaries

You are a grandfathered derivative beneficiary if you were the qualifying spouse or unmarried child under 21 of the principal beneficiary at the time the qualifying petition or labor certification was filed. USCIS treats grandfathered derivatives almost the same as grandfathered principals. Importantly, derivative grandfathering does not require the spousal or parent-child relationship to still exist when you eventually file your I-485. Even if the marriage ended in divorce, even if the principal beneficiary has passed away, you remain grandfathered.

The "Approvable When Filed" Standard

The qualifying petition or labor certification does not have to have been actually approved. It only had to be approvable when filed. Under 8 CFR 245.10(a)(3), this means it must have been properly filed (filed by April 30, 2001 with the correct signature and fee), meritorious in fact, and non-frivolous on the date of filing. USCIS evaluates this based on the facts that existed at the time of filing, not based on what happened later. If the marriage was real when the I-130 was filed, the petition is approvable when filed even if the couple later divorced. If the job offer was bona fide when the labor certification was filed, the labor certification is approvable when filed even if the employer later closed. But if the marriage was a sham or the job offer was a fraud, the petition was never approvable when filed and you are not grandfathered.

You Do Not Have to Use the Original Petition

One of the most useful features of 245(i) is that grandfathering attaches to the person. Once you are grandfathered, you are grandfathered for life. You can adjust status many years later based on a completely different and current petition. For example, a Brazilian woman who was named as a derivative on her mother's old I-130 filed in 1999 might marry a U.S. citizen in 2026. Her husband files a fresh I-130 today. She can then file Form I-485 with Supplement A and a $1,000 fee based on the new I-130, because she is grandfathered through the old petition. The original 1999 petition can have been denied, withdrawn, or revoked. That does not matter, as long as it was approvable when filed.

The December 21, 2000 Physical Presence Rule

The LIFE Act Amendments of 2000 added a physical presence requirement that applies only to qualifying petitions and labor certifications filed after January 14, 1998. If your qualifying petition or labor certification was filed in that narrow window between January 15, 1998 and April 30, 2001, you (the principal beneficiary) must have been physically present in the United States on December 21, 2000. The physical presence of the derivative beneficiaries themselves is not relevant. Only the principal beneficiary has to meet the December 21, 2000 requirement.

Proving physical presence on a specific date a quarter-century ago is its own challenge. USCIS gives the greatest weight to federal, state, or municipal government records. Useful evidence includes tax returns or W-2s for 2000, hospital and medical records, school enrollment records, lease agreements, utility bills, and church or religious records. A single strong government-issued document can carry the day. More commonly, the case is built from several different records that, taken together, show the person was here on or around December 21, 2000.

If the qualifying petition or labor certification was filed on or before January 14, 1998, no physical presence proof is required. That older group of grandfathered people is fully covered.

What 245(i) Does and Does Not Do for Unlawful Presence

There is a common misunderstanding that 245(i) is a waiver of the 3-year and 10-year unlawful presence bars under INA 212(a)(9)(B). It is not. Those bars are triggered only when a person who has accrued 180 days or more of unlawful presence departs the United States. 245(i) lets you stay in the country and adjust here. Because you never leave, you never trigger the bars in the first place. That is the entire point of the statute.

For families in Framingham, Brockton, Marlborough, Everett, Lowell, Milford, Mattapan, Randolph, Stoughton, and across Greater Boston, this matters in a very practical way. Many longtime residents who built lives here decades ago have accrued years and years of unlawful presence. The thought of leaving for a consular interview in Sao Paulo or Port-au-Prince and then waiting out a 10-year bar abroad is a nonstarter for most families with U.S. citizen children, mortgages, and jobs. 245(i) is the difference between staying with your family and risking a decade of separation.

Once you have a green card through 245(i), your prior unlawful presence is in the rearview mirror. It does not bar naturalization later, and it does not surface on its own.

Filing Mechanics: Forms, Fees, and Process

The Required Forms

A 245(i) adjustment package includes Form I-485 (Application to Register Permanent Residence or Adjust Status), Form I-485 Supplement A (Adjustment of Status Under Section 245(i)), and either an underlying approved or concurrently filed visa petition (typically Form I-130 or Form I-140) or an approved labor certification followed by an I-140. You also include the standard supporting documents required for any I-485, including Form I-693 (medical examination), Form I-864 (Affidavit of Support for family-based cases), proof of identity and lawful entry status of relatives, biometrics, two passport photos, and any waiver filings under separate forms (such as Form I-601 for criminal or fraud waivers, if applicable).

The 245(i) Penalty Fee

The Form I-485 Supplement A fee is $1,000. Applicants under 17 years of age do not pay the $1,000 Supplement A fee. Always confirm the I-485 base fee on the current USCIS G-1055 Fee Schedule at uscis.gov/g-1055 before filing, because the fee schedule is updated periodically.

Concurrent Filing or Later Filing

If a visa number is immediately available (which it always is for an immediate relative I-130 filed by a U.S. citizen spouse, parent of an adult U.S. citizen, or parent of a U.S. citizen child age 21 or older), you can file the I-130 and the I-485 with Supplement A at the same time. This is called concurrent filing. For preference categories with backlogs (such as F2A spouses and minor children of LPRs, F3 married children of citizens, or F4 siblings of citizens), you must wait until your priority date is current under the State Department Visa Bulletin before filing the I-485.

After-Acquired Spouses and Children: The Matter of Estrada Rule

The category of after-acquired spouses and children is a recurring source of confusion and heartbreak. An after-acquired spouse is someone who married the principal beneficiary after April 30, 2001. An after-acquired child is someone born after April 30, 2001. Both groups were once thought to inherit grandfathering automatically.

In Matter of Estrada and Estrada, 26 I&N Dec. 180 (BIA 2013), the Board of Immigration Appeals held that after-acquired spouses and children are not independently grandfathered. They are not grandfathered derivatives in the sense that the original derivative spouse and children at the time of the 2001 filing were grandfathered.

After-acquired family members can still benefit from 245(i), but only in a narrow way. They may follow to join or accompany the principal beneficiary under INA 203(d) if the qualifying spouse or parent-child relationship exists before the principal adjusts status. Practically, this means timing matters enormously. The marriage, or the child's birth, must precede the principal's adjustment. Once the principal beneficiary has already adjusted to lawful permanent resident status, an after-acquired spouse cannot piggyback on the principal's 245(i) grandfathering.

If you are an after-acquired spouse or child of a 245(i)-grandfathered principal, do not wait. Get legal advice as soon as possible to figure out the right sequence.

How to Tell If You Might Be Grandfathered

You may be grandfathered if any of the following sounds familiar:

• A U.S. citizen or LPR relative (parent, sibling, spouse) filed an I-130 for you on or before April 30, 2001
• You were a child or spouse of someone for whom a relative filed an I-130 on or before April 30, 2001
• An employer filed a labor certification (ETA 750) on your behalf with the Department of Labor on or before April 30, 2001
• Your parent had a labor certification or I-140 filed on or before April 30, 2001, and you were under 21 and unmarried at the time of filing
• Your spouse was the beneficiary of a qualifying filing on or before April 30, 2001 and you were married at the time

If any of these apply, the next steps are to gather documentation. You will want a copy of the original I-130 receipt notice, the approval notice if there was one, or the labor certification approval, plus any DOL files. If a relative who once filed for you has died or you have lost contact, USCIS may still have records. A FOIA request (Form G-639) to USCIS is often the right way to recover proof of an old petition. A separate FOIA to the Department of Labor can recover old labor certification files.

Why This Provision Has Not Been Extended

Many people ask whether Congress might extend the April 30, 2001 deadline. There have been numerous bills introduced over the past two decades to reopen 245(i) for new petitions, but none has become law. The deadline has now stood for 25 years. As of May 2026, no current legislation has passed to extend it.

This is not just a Brazilian or Haitian community concern. It affects long-term immigrants from every country who have been waiting for a path. For the people who do still qualify, the priority is to use the benefit before it is somehow narrowed by future regulation or interpretation. The grandfathered population is finite and is aging. If you or a family member may be grandfathered, this is not a moment for delay.

Common Mistakes That Sink 245(i) Cases

Treating Approvable When Filed as Optional

People sometimes assume that any old filing creates grandfathering. It does not. A petition filed for a sham marriage or filed without any factual basis was never approvable when filed and does not grandfather anyone. Be honest with your attorney about the underlying facts of the old petition. We need to know.

Ignoring Inadmissibility

The biggest preventable loss in 245(i) cases is failing to screen for INA 212(a) inadmissibility grounds before filing. A prior order of removal, a controlled substance conviction, a misrepresentation, a false claim to U.S. citizenship, or a sham marriage finding can sink the case regardless of grandfathering. Some of these grounds have waivers and some do not. Screen first, then file.

Filing Without Locating the Old Petition

USCIS sometimes requires actual documentary proof that the qualifying petition was filed on or before April 30, 2001. A FOIA on your old A-number or alien registration, or a FOIA to the Department of Labor for an ETA 750, may take months. Start that process early.

Missing the Physical Presence Question

If the qualifying filing was made between January 15, 1998 and April 30, 2001, you must prove physical presence on December 21, 2000. Build that record carefully with old tax returns, school records, medical records, and any other contemporaneous government documents you can find.

Where 245(i) Fits in a Broader Strategy

Even when 245(i) is available, it is not always the only path. For people with a U.S. citizen spouse who entered without inspection but are not grandfathered, the I-601A Provisional Unlawful Presence Waiver followed by consular processing remains an option. For people who came to the United States as children and are now adults, an old I-130 by a parent that was approvable when filed may be one of several intersecting eligibility theories alongside cancellation of removal or other relief.

I encourage every client to think of 245(i) as one lane in a larger highway. The point of a consultation is to find every lane that may be open and choose the safest path to a green card. Sometimes 245(i) is the answer. Sometimes it is a backup plan that anchors a different primary strategy.

Frequently Asked Questions About 245(i)

Final Thoughts: Take an Old Filing Seriously

Section 245(i) is one of the most quietly powerful provisions in U.S. immigration law. It rescues long-term residents who would otherwise face a brutal choice between leaving their families for years and giving up on a green card altogether. The April 30, 2001 deadline has not moved in a quarter-century, but the people who were grandfathered then are still grandfathered today.

If a parent, a former employer, an older sibling, or an estranged spouse ever filed any kind of immigration paperwork for you decades ago, take it seriously. Do not assume the old paperwork is worthless. Bring whatever you have (a receipt notice, an approval letter, a copy of an old labor certification, even your A-number) to a consultation. If you do not have any documents, an attorney can help you file a FOIA request to recover them. The single most important step is finding out whether you are grandfathered before assuming you are not.

For families in Framingham, Brockton, Marlborough, Everett, Lowell, Milford, Mattapan, Randolph, Stoughton, and Greater Boston, this is one of the rare instances in immigration law where the news is genuinely better than people expect. The old petition you forgot about may still be a path home.