In a recent decision, the Board of Immigration Appeals (BIA) ruled that only the original “grandfathered alien” had to be in the US on December 21, 2000, in order for the whole family to benefit from Section 245(i). Derivative family members could independently qualify for adjustment of status under the Section 245(i) even if they were not “physically present” in the US on December 21, 2000 (when the law was signed).
This is great news for married couples! In the past, USCIS had been denying adjustment cases because USCIS required the derivative spouse to have been in the US on December 21, 2000. Now, for example, where the wife was grandfathered under Section 245(i) (such as through a family petition by a brother or sister), and the husband now has an employer willing to petition him, the couple is able to “transfer” the wife’s Section 245(i) eligibility from her family petition, and use it in connection with the husband’s employer’s case.
By way of background, basically, Section 245(i) was a law that enabled people to adjust status (be interviewed for a green card in the US), even if they were out of status, worked without authorization, crewman/jump ship, entered without inspection, etc., provided they met the following two requirements:
1. A petition or labor certification was filed for them (by either a family member or employer) on or before April 30, 2001; and
2. They were “physically present” in the US on December 21, 2000. (Note: for petitions filed before January 15, 1998, there was no “physical physical presence” requirement.)
If these requirements were met, an alien is considered “grandfathered” as a “principal beneficiary.” Not only is the grandfathered alien covered by Section 245(i), but also his or her spouse and minor children, who are considered “derivative beneficiaries”. So, if the couple was married at the time the qualifying petition was filed, then either spouse could later find a faster way to get a green card, and could be the principal beneficiary in connection with that new case, even though it was filed long after the April 30, 2001 deadline for Section 245(i). Section 245(i) eligibility was simply “transferred” to the newer case, like a coupon. (Note: only Section 245(i) eligibility is transferrable, NOT the priority date of the original grandfathered petition).
However, the USCIS had taken the position that where one spouse benefited from (or was grandfathered under) Section 245(i) (by being petitioned before April 30, 2001 and was in the US on December 21st, 2000), and the other spouse was the principal beneficiary on a later-filed case, the other spouse must have been in the US on December 21st, 2000. Fortunately, the BIA disagreed, stating that only the original grandfathered alien had to have been in the US on December 21st, 2000 in order for both spouses to be “grandfathered”, and either one could later be petitioned a different way.
In that particular case, the couple was married in 1982. The wife’s sister filed a F-4 petition for them in 1999. Therefore, so long as the wife was physically present in the US on December 21, 2000, she qualified as a “principal” grand-fathered alien under Section 245(i), and the husband was also covered by Section 245(i). The husband was then petitioned by his employer in 2004, and he apparently entered the US in 2005, without inspection (i.e. snuck across the border). Thus, the husband was not in the US on December 21, 2000.
When the couple filed for adjustment of status, based on the petition by the husband’s employer, the USCIS denied adjustment, arguing that the husband “is transformed from a derivative grandfathered alien to a principal grandfather alien because he is the principal adjustment applicant on the approved Form I-140 [employer’s petition].” Accordingly, USCIS contended that the husband now had to meet the “physical presence” requirement under Section 245(i), and demonstrate that he was in the US on December 21, 2000. The BIA disagreed, finding that only the wife had to meet the “physical presence” requirement, of being in the US on December 21, 2000.
If your adjustment was denied because you had 245(i) and your spouse was petitioned by an employer after April 30, 2001, you may want to seek the advice of a reputable attorney, who can determine if this new BIA case will apply to your situation.
Michael J. Gurfinkel is licensed, and an active member of the State Bars of California and New York. All immigration services are provided by, or under the supervision of, an active member of the State Bar of California. Each case is different. The information contained herein (including testimonials, “Success Stories”, endorsements and re-enactments) is of a general nature, and is not intended to apply to any particular case, and does not constitute a prediction, warranty, guarantee or legal advice regarding the outcome of your legal matter. No attorney-client relationship is, or shall be, established with any reader.
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