We recently had a case which illustrates the rather obscure way an immigration attorney can be of help. We received a young lady who had been to many attorneys asking the same questions. She had entered the country illegally when she was a very young girl. Now, nineteen years later, with a husband (a United States Citizen) and their young child (also a U.S. Citizen), she was being told repeatedly that she had no recourse. Conventional wisdom from the sources she was consulting was that once section 245(i) of the Immigration and Nationality Act expired on April 30, 2001, she was out of luck. Immediately upon telling these people that she had entered illegally, she was essentially ushered out the door; no visa, no hope.
The Long Hand of the Grandfathering Law
But our heroine had one more stop to make. As she entered our offices, she was understandably crestfallen, and, to be fair, we initially felt her case was not eligible for adjustment. Her entry had been illegal (what is called Entered Without Inspection—or EWI) and the law that allowed an illegal entrant to adjust had ended. It is then that we asked a routine question regarding the procedural history of her case:
“Has anyone in your family, other than your husband, ever file a petition on your behalf?”
Her answer was as nonchalant as it was staggeringly important:
“Sure. My mom, but that was a very long time ago, that doesn’t count anymore.”
And yet it did. According to USCIS policy documents, upon expiration of the LIFE Act enacted at the end of 2000, any person who had a pending immigrant petition or labor certification would be able to use the part of the law that allowed illegal entrants to adjust their status--even after it was gone. In short, that petition filed by her mother many, many years ago proved to be the link that would allow her to be grandfathered and use INA 245(i) to legalize her status.
Although skeptical at first, we convinced her that she needed only to file an Adjustment Application with the special evidence required by the LIFE Act and she would be adjusted. After several months of administrative processing, she received her Green Card two weeks before the New Year. She also received her Social Security card and put a down payment on a home. With her new credentials, she is now in school and studying while working—the promise of the American Dream written on her smile.
What We Learned
No matter what people tell you, make sure you always seek the advice of competent counsel, and DON’T be afraid to ask for a second opinion; or a third, or a twenty-third. Although this person’s case had many unique elements, only a thorough, honest and exacting history of your case can ensure that your lawyer has the best chance to pull a residence out of a hat.
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