Section 245(i): Pay To Stay


Section 245(i) of the Immigration & Nationality Act has enabled many thousands of foreign nationals to get out of a cycle of illegality and become permanent residents (green card holders). The Legal Immigration and Family Equity Act (LIFE Act), revived Section 245(i) of the Immigration & Nationality Act. We call it the “Pay to Stay” provision.

Who is Eligible?

First, the alien must meet both of two requirements:

  1. The alien must have been physically present in the U.S. on December 21, 2000 (so SAVE PAPERS SHOWING YOU WERE HERE); and
  2. The necessary initial papers must behave been filed for the alien by April 30, 2001.

Second, the alien must fall into any one of several groups for whom papers could be filed:

  1. The spouse, unmarried son or daughter of a legal permanent resident (green card holder) who properly filed a petition before April 30, 2001;
  2. The spouse, married or unmarried son or daughter, parent, brother or sister of a U.S. citizen who properly filed a petition before April 30, 2001; or
  3. An existing or prospective worker for a U.S. employer who before April 30, 2001 properly filed an “immigrant petition” with the USCIS, or a labor certification application with the Department of Labor to show that there are insufficient minimally qualified U.S. workers available for the type of position the alien would fill.

What Really Happens, Legally?

Before 245(i) was passed, many groups of people who were generally qualified for permanent residence were ineligible to process to U.S. permanent residence within the U.S. because they had entered the U.S. illegally or had become illegal. Instead, they would need to finish the green card process by applying for an immigrant visa at a U.S. consulate outside the U.S. Once those people left the country to apply for their visa, they were often prevented from legally entering the United States for three to ten years because they had been “unlawfully present” in the U.S. for 180 days or more. Under the statute at section 245(i), if an eligible person described above has taken the proper steps before April 30, 2001, that person may later take the final steps toward permanent residence within the U.S. without leaving, and without becoming subject to any bars on re-entry. The person pays a $1,000 penalty fee to the USCIS at the time he or she takes the final step of adjustment, and no penalty is required if the person is under age 17 at the time of filing for adjustment.

Does The Alien Become Legal If He/She Filed Before April 30, 2001?

No, not unless you were one of the people who was not subject to a family waiting line and thus could file for adjustment to permanent residence at the same time as the petition. For most people, filing the labor certification or immigrant petition just gave someone the chance to become legal later. Those filings, and even approval of those filings, do not make someone legal and do not by themselves make someone eligible to work. It is only through the filing of the last step, for adjustment of status, that the alien becomes protected from deportation and receives work authorization. Therefore, it is important to try to stay clear of Immigration and Customs Enforcement (ICE) officials and even local law enforcement officials (who can turn an illegal alien into the ICE in some instances) until the final steps can be taken.

Can An Eligible Alien Leave The U.S. While Waiting For The Process To End? No. Until the final step is completed the alien MUST NOT LEAVE THE UNITED STATES. An alien who leaves the U.S. earlier may become barred from returning and lose the ability to take advantage of the law.

Can Someone Have Filed in One Category and Finish in Another? Yes, and that is very important. The alien does not have to adjust status in the same category under which the petition was filed before April 30, 2001. For example: If an employer filed a labor certification application before April 30, 2001 for an alien who entered illegally, and later the alien married a U.S. citizen before the labor certification process is finished, the alien can switch to the family category in order to adjust status more quickly (in that category, immediately), and the timing of the labor certification will have allowed the illegal entry to be forgiven in the marriage case. Someone can switch categories or sponsors later as long as the application or petition filed before April 30, 2001 was approvable when filed, even if it is later denied or withdrawn, for all kinds of reasons. In many cases, even the spouse or child of the person who applied for before April 30, 2001 can later use the pay-to-stay provision to adjust status, even in another category with another sponsor.

By Sponsoring an Employee, Will I Be Causing an ICE Audit or Raid of My Business?

Technically, that is possible, and we cannot say it has never happened. However, it has never happened to one of our clients, and it does not happen often. ICE tends to conduct audits and raids in industries with high employment of undocumented workers, regardless of sponsorship, and that probably will not change.

If a Family Member Sponsors the Alien, and the Case is Successful, When Will a Green Card Be Available Based on the Family Sponsorship?

It depends on whether the sponsor is a U.S. citizen or permanent resident, the type of relationship, the sponsored person’s country of birth, age, and marital status. For instance, the parent, spouse or child sponsored by a U.S. citizen could process immediately. On the other hand, the brother or sister of a U.S. citizen may be on a waiting list for ten years. Other cases would be in between.

Will This Benefit the Spouse and Children of the Person Being Sponsored?

Yes. Any person who is a spouse or unmarried under age 21 at the time of filing of the petition will be able to “pay-to-stay” once the spouse or child becomes eligible to take the last step toward permanent residence. That may be based on the petition filed before April 30, 2001, or through any other path toward permanent residence filed before or after April 30, 2001. The “pay-to-stay” benefit remains even if the spouse or child ceases to have the relationship to the “principal beneficiary” (through death or divorce), turns 21, or marries.

How Can I Get Help from Baker Donelson’s Immigration Team?

Although the April 30, 2001 deadline passed some time ago, Baker Donelson’s group is able to help clients determine whether a government filing prior to the deadline continues to make them eligible to become a permanent resident in the United States. Our immigration attorneys are experienced in the analysis of complicated issues that may arise in such cases where filings made prior to the April 30 deadline were denied or withdrawn. We help clients to determine strategies for legalization, and we monitor Congressional activity so that we will know when, if ever, Congress will extend the statute to make others eligible for permanent residency.

Consult with us for assistance with a case.