Reuben S. Seguritan

May a Derivative Beneficiary Adjust under Section 245(i)?

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An alien who is out of status, worked without authorization, or who entered the U.S. without inspection or as a crewman, is generally ineligible to adjust status. However, the alien may still obtain approval of his I-485 adjustment of status application if he can benefit from Section 245(i) of the Immigration and Nationality Act (INA).

 

To be covered under Section 245(i), an alien must be the beneficiary of an immigrant visa petition or labor certification that was properly filed and approvable when filed on or before April 30, 2001. If the visa petition or labor certification was filed between January 14, 1998 and April 30, 2001, the alien must prove that he was in the U.S. on December 21, 2000. The alien is required to pay a penalty of $1,000.

An alien who is “grandfathered” under this section, is not limited to adjusting on the basis of the qualifying petition or application but may seek to adjust on any other basis for which the alien is eligible.

The principal grandfathered aliens are the principal beneficiaries of visa petitions or labor certifications filed on or before April 30, 2001.

Derivative grandfathered aliens, on the other hand, refer to the dependent spouse and children of principal grandfathered aliens. To qualify as a derivative grandfathered alien, the spouse or child relationship must have existed when the petition or labor certification was filed on or before the April 30, 2001 sunset date.

Spouse or child relationship created after that date or after-acquired spouses and children do not qualify as “grandfathered aliens.” They may not independently benefit from Section 245(i). However, they may apply as dependents of the principal grandfathered alien.

Subsequent changes in circumstance such as divorce from or death of the principal grandfather alien or the child turning 21 do not affect the status of derivative grandfathered aliens. Both the principal grandfathered alien and the derivative grandfathered alien may be the principal adjustment applicant under Section 245(i).

A recent case appealed to the Board of Immigration Appeals (BIA) involved a husband and wife who are citizens of the Philippines. The female respondent entered the U.S. on a B-2 visa on July 25, 1996 and the male respondent on October 31, 1999 also on a B-2 visa. They were married on October 29, 2007. Both overstayed their temporary visas.

The wife was the beneficiary of an employment-based petition filed on her behalf on April 9, 2001 which was withdrawn in February 2002. She was also the beneficiary of an approved employment-based petition filed on June 12, 2006.

The husband, on the other hand, was the beneficiary of an approved I-130 petition filed by his former wife on November 1, 2000.

They sought adjustment of status under Section 245(i) based on the wife’s second approved I-140 petition. They argued that the wife was a grandfathered alien based on the first visa petition filed in April 2000 and second, that they are both grandfathered based on the I-130 visa petition of the husband filed in November 2000.

The BIA held that the wife did not qualify as a “grandfathered alien” because the first I-140 petition filed on her behalf was not approvable when filed. To be “approvable when filed,” the petition must have been properly filed, meritorious in fact and non-frivolous.

The first I-140 petition sought to classify her as an “alien of extraordinary ability.” The evidence did not show that she would have qualified for the visa classification had the petition been adjudicated.

Also, even if it appears that her husband was a principal grandfathered alien based on the I-130 petition filed in April 2000, she is not considered a derivative grandfathered alien based on that petition because they were not married at that time. They were only married in October 2007.

The BIA ruled that since the wife is not covered by Section 245(i), she is ineligible to adjust status. Because she is barred to adjust status, it follows that her husband is also ineligible to adjust status as her dependent.

 

(Editor’s Note: REUBEN S. SEGURITAN has been practicing law for over 30 years. For more information, log on to www.seguritan.com or call 212-695-5281.)

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