A reminder about 245(i) and substitutions: in general, a person not lawfully present in the US (whether by overstay or by entry without inspection) can adjust ONLY if he or she was the beneficiary of a petition filed prior to April 30, 2001; was in the United States on December 21, 2000, and if the petition was approvable when filed.
1. A, an overstay, is in the US on December 21, 2000. His brother, a U.S. Citizen, files an I-130 for him on January 4, 2001. In 2003, employer E substitutes A in on an I-140 petition. A can apply to adjust status (get the green card) because he meets the qualifications for 245(i) protection.
2. B, an overstay, is in the US on December 21, 2000. No petition is filed for her prior to April 30, 2001. In 2003, employer E substitutes B in on an I-140 petition. B CANNOT
adjust status, because she has not met the qualifications for 245(i) protection.
I bring this up, because I recently met two people with situations similar to example 2. Each paid substantial amounts to lawyers (one paid more than $12,000) for substitutions that had no chance of success… and notified USCIS of their whereabouts and status in the process.