Chapter 2 - Grandfathering Requirements

An officer must first determine whether an INA 245(i) applicant qualifies as a grandfathered noncitizen or as the current spouse or child of a grandfathered noncitizen at the time of adjustment.

A. Definition of Grandfathered Noncitizen

A grandfathered noncitizen is or was the principal or derivative beneficiary[1] of:

  • A qualifying immigrant visa petition; or

  • A qualifying labor certification application.[2]

If the qualifying immigrant visa petition or labor certification application was filed after January 14, 1998, the principal beneficiary must also have been physically present in the United States on December 21, 2000.

B. Qualifying Immigrant Visa Petition or Labor Certification Application

A qualifying immigrant visa petition or permanent labor certification application is defined as a petition or application that was both “properly filed” on or before April 30, 2001 and “approvable when filed.”[3]

A qualifying immigrant visa petition[4] may include any of the following forms:

  • Petition for Alien Relative (Form I-130)

  • Immigrant Petition for Alien Worker (Form I-140)

  • Petition for Amerasian, Widow(er), or Special Immigrant (Form I-360)

  • Immigrant Petition by Alien Entrepreneur (Form I-526)

A qualifying permanent labor certification application[5] refers to an Application for Alien Labor Certification (ETA Form 750).[6]

1. Properly Filed[7]

Qualifying Immigrant Visa Petition

For purposes of INA 245(i), an immigrant visa petition is considered properly filed if:

  • The petition was physically received by legacy Immigration and Naturalization Service (INS)[8] on or before April 30, 2001, or, if mailed, postmarked on or before April 30, 2001, regardless of when INS received it; and

  • The petition was submitted with the correct fees and proper signature.[9]

A petition received with either an illegible or missing postmark is timely filed if INS physically received the petition by May 3, 2001, and stamped it with a “Filed Prior to 245(i) Sunset” stamp.[10]

Qualifying Permanent Labor Certification Application

A permanent labor certification application is properly filed if it was filed on or before April 30, 2001 and accepted for processing according to the regulations of the Secretary of the U.S. Department of Labor (DOL) that existed at the time of filing.

During the INA 245(i) qualifying time period and under authority delegated by DOL, permanent labor certification applications were generally filed directly with the state workforce agency (SWA) (such as a State Employment Service Agency) in the state where the offered job was located. The SWA indicated the filing date or receipt date on the first page of the ETA Form 750, Part A in the “Endorsements” block located in the lower right corner, specifically in the area indicated as “L.O.” (which indicates “local office”).

Therefore, a permanent labor certification application is considered properly filed where the SWA date-stamped the application, thereby indicating the application was complete and accepted for processing. Such a complete application remains properly filed, notwithstanding any need for the employer to amend the application or provide additional documents and information as required by DOL to ultimately obtain a favorable adjudication of the application.[11]

Permanent labor certification applications received by a SWA that do not bear a “Filed Prior to 245(i) Sunset” stamp may meet INA 245(i) filing requirements if they were given a receipt date of no later than April 30, 2001. USCIS accepts the receipt date that the DOL or SWA ultimately assigned to the permanent labor certification application.

2. Approvable When Filed[12]

An immigrant visa petition or permanent labor certification application is considered “approvable when filed” if the petition or application was:

  • Properly filed;

  • Meritorious in fact; and

  • Non-frivolous.

Therefore, once the petition or application is determined to have been properly filed,[13] the petition or application is considered approvable when filed if it is both meritorious in fact and non-frivolous.

Meritorious in Fact: Immigrant Visa Petition

To be considered “meritorious in fact,” the beneficiary of an immigrant visa petition must have met all the substantive eligibility requirements at the time of filing for the specified immigrant category. Stated another way, the immigrant visa petition is meritorious in fact if the petition merited a legal victory upon filing had it been fully adjudicated, even if the petition was not fully processed or actually approved.[14]

For example, a beneficiary claiming to be the child of a U.S. citizen must have met the definition of a child[15] at the time the immigrant petition was filed. In the case of a marriage-based immigrant visa petition, the marriage must have been bona fide at its inception.[16] USCIS will consider all available evidence to determine if the beneficiary met all the eligibility requirements at the time of filing, including evidence of fraud.

Meritorious in Fact: Permanent Labor Certification Application

The standard for determining whether a permanent labor certification application is meritorious in fact is different than for immigrant petitions: whereas the substantive eligibility requirements for immigrant petitions are fixed at the time of filing, that is not the case for permanent labor certification applications. Specifically, the terms and conditions of employment stated in the original application (such as job qualifications and rate of pay) are subject to the requirements as stated on the application for permanent labor certification.

A permanent labor certification application is considered meritorious in fact if:

  • The employer filing the application was extending a bona fide offer of employment;

  • The employer had the apparent ability to hire the beneficiary; and

  • There is no evidence of fraud.

Accordingly, a properly filed labor certification application is presumed to be meritorious in fact if the application is non-frivolous and if no apparent bars to approval existed at the time it was filed.[17]

Factors for Determining Approvable When Filed

Approval or denial of a qualifying immigrant visa petition or permanent labor certification application is not determinative. However, if an immigrant visa petition or permanent labor certification application was ultimately approved, the petition or application was generally approvable when filed.[18] Likewise, if the qualifying immigrant visa petition or labor certification application was ultimately denied or revoked, the petition or application is generally not considered “approvable when filed” unless it was denied due to circumstances that arose after the time of filing.[19]

In all cases, USCIS bases the determination of approvable when filed on the circumstances that existed at the time the immigrant visa petition or permanent labor certification application was filed. For example, a petition or application may still be considered “approvable when filed” even if the employer filing the petition or application later went out of business.[20]

A petition or application that was properly filed on or before April 30, 2001, and was approvable when filed may grandfather the beneficiary even if the petition was later withdrawn, denied, or revoked due to circumstances that arose after the time of filing.[21] This same principle applies if the U.S. Department of State later terminates the beneficiary’s immigrant visa registration.[22]

Non-Frivolous

An immigrant visa petition or permanent labor certification application is “frivolous” if the petition or application is deemed to be “patently without substance.”[23] Therefore, a non-frivolous petition or application is one filed in good faith and is based on a reasonable belief that there is some basis in law or fact for approval; a frivolous filing is one completely lacking in legal merit and is expected to be denied.[24]

3. Used Petitions and Applications

Once a qualifying immigrant visa petition or permanent labor certification application has been used by a noncitizen as the basis for obtaining lawful permanent resident (LPR) status,[25] the petition or application cannot be used again.[26] A qualifying petition or application does not grandfather a beneficiary if that beneficiary has previously obtained LPR status on the basis of that petition or application.[27] To determine whether a petition or application has been used previously, an officer should check available USCIS and DOL systems as needed.

C. Beneficiary of Qualifying Immigrant Visa Petition or Permanent Labor Certification Application

1. Special Considerations for Principal Beneficiaries

A principal beneficiary for purposes of INA 245(i) grandfathering is either:

  • The noncitizen named as the direct beneficiary on the qualifying immigrant visa petition; or

  • The noncitizen named on the qualifying permanent labor certification application as the person to whom the U.S. employer is extending an offer of employment.

Substituted Principal Beneficiary of a Permanent Labor Certification Application

A noncitizen may be eligible to adjust under INA 245(i) if the employer who filed a qualifying permanent labor certification application properly substituted the noncitizen as the beneficiary of the application effective on or before April 30, 2001. The substitution makes the original beneficiary ineligible for 245(i) adjustment based on that application.[28]

Example: Timely Substituted Principal Beneficiary of Qualifying Application

Date

Event

March 1, 1998

An employer properly files a permanent labor certification application for an employee that was approvable when filed and which DOL ultimately approved.

April 1, 2001

The employer substituted a new employee for the original employee because the employer no longer intended to use the approved labor certification application for the original employee. The employer files an employment-based immigrant visa petition for the new employee, requesting substitution and using the labor certification application initially approved for the original employee.

June 1, 2003

The new employee files an adjustment of status application based on the petition filed by the employer.

In this example, the new employee may seek to adjust as a principal beneficiary under INA 245(i) because the person was the properly substituted beneficiary of the approved labor certification application at the time the 245(i) filing period ended on April 30, 2001. The original employee may not seek 245(i) adjustment on the basis of this permanent labor certification application because the person was replaced as the beneficiary prior to April 30, 2001. However, an untimely substitution (that is, one occurring after April, 30, 2001) would not affect the original principal beneficiary’s eligibility to seek 245(i) adjustment.

2. Special Considerations for Derivative Beneficiaries

Grandfathering Eligibility

A qualifying immigrant visa petition or labor certification application may serve to grandfather the principal beneficiary’s immediate family members at the time the visa petition or labor certification application was filed (his or her spouse and child(ren)) as grandfathered derivative beneficiaries.[29] The spouse or child does not have to be named in the qualifying petition or application and does not have to continue to be the principal beneficiary’s spouse or child. As long as an applicant can demonstrate that he or she was the spouse or child (unmarried and under 21 years of age) of a grandfathered principal beneficiary on the date the qualifying petition or application was properly filed, the applicant is grandfathered and eligible to seek INA 245(i) adjustment in his or her own right.[30]

A derivative beneficiary who qualifies as a grandfathered noncitizen may benefit from INA 245(i) in the same way as a principal beneficiary. If the derivative beneficiary meets all eligibility requirements, the beneficiary may adjust despite an entry without inspection or being subject to the specified adjustment bars.[31]

Underlying Basis for Adjustment

If a grandfathered derivative beneficiary[32] remains the spouse or child of the grandfathered principal beneficiary, the derivative beneficiary may accompany or follow to join the principal beneficiary, provided the principal beneficiary is adjusting status under INA 245(i). In this case, the grandfathered principal beneficiary is the principal adjustment applicant and the grandfathered derivative beneficiary is the derivative applicant.[33]

A grandfathered derivative beneficiary may also adjust under INA 245(i) in his or her own right, on some basis completely independent of the grandfathered principal beneficiary.[34] This is true whether or not the grandfathered derivative beneficiary remains the grandfathered principal beneficiary’s spouse or child. For instance, a grandfathered derivative beneficiary spouse who becomes divorced from the grandfathered principal beneficiary after the qualifying petition or application is filed is still a grandfathered noncitizen eligible to seek adjustment independently under 245(i). Similarly, a grandfathered derivative beneficiary child who marries or reaches 21 years of age after the qualifying petition or application is filed is still grandfathered and eligible to seek INA 245(i) adjustment on his or her own basis through a different petition.

Example: Derivative Beneficiary Eligible After Divorce from Principal Beneficiary

Date

Event

January 1, 2000

An employer files a permanent labor certification application on behalf of a married employee. The married employee is the principal beneficiary of the permanent labor certification application. The application is determined to be approvable when filed and the married employee noncitizen is a grandfathered noncitizen. As the employee was married at the time the labor certification application was filed, the employee’s spouse is the derivative beneficiary and is also a grandfathered noncitizen.

January 1, 2003

The employee and spouse divorce.

Today

The employee’s former spouse is selected in the diversity visa program.

In this example, the employee is the grandfathered principal beneficiary for INA 245(i) adjustment because the qualifying permanent labor certification application was filed directly on the employee’s behalf before April 30, 2001. The employee’s former spouse is a grandfathered derivative beneficiary because they were married at the time the qualifying permanent labor certification application was filed. The qualifying application serves to grandfather both the principal and derivative beneficiaries. Therefore, as a grandfathered derivative beneficiary, the former spouse may apply for adjustment under 245(i) based on being selected in the diversity visa program, regardless of the grandfathered principal beneficiary’s basis for adjustment and regardless of the fact that their marital relationship no longer exists.

If a grandfathered derivative beneficiary is adjusting on a separate basis from the grandfathered principal beneficiary, the grandfathered derivative beneficiary becomes the principal adjustment applicant. As the principal applicant, the grandfathered derivative beneficiary’s current spouse and child(ren) may accompany (or follow-to-join) the applicant.[35]

3. Determining Whether An Adjustment Applicant Qualifies as Grandfathered Noncitizen for 245(i)

The following flowchart provides a step-by-step process for determining whether an adjustment applicant meets the definition of a grandfathered noncitizen. In addition to being a grandfathered noncitizen, INA 245(i) applicants must also meet all other eligibility requirements to adjust under 245(i).[36]

Step-by-Step Determination: Grandfathered Noncitizen

Step

If yes, then…

If no, then…

Step 1: Is the applicant a principal or derivative beneficiary of an immigrant visa petition?

Go to Step 3.

 Go to Step 2.

Step 2: Is the applicant a principal or derivative beneficiary of a permanent labor certification application?

Go to Step 3.

The applicant is not eligible for 245(i) adjustment.

Step 3: Was the petition or application filed on or before April 30, 2001?[37]

Go to Step 4.

The applicant is not eligible for 245(i) adjustment.

Step 4: Has the applicant previously obtained LPR status on the basis of the petition or application?

The applicant is not eligible for 245(i) adjustment.[38]

Go to Step 5.

Step 5: Was the petition or application properly filed?

Go to Step 6.

The applicant is not eligible for 245(i) adjustment.

Step 6: Was the petition or application approvable when filed?

The applicant is a grandfathered noncitizen.

The applicant is not eligible for 245(i) adjustment.

4. Effect of Grandfathering

Once a 245(i) adjustment applicant establishes that he or she is a grandfathered noncitizen, the applicant remains grandfathered and future eligibility for adjustment under INA 245(i) is preserved until the applicant adjusts to LPR status.[39] The applicant may use the qualifying petition or application as the basis for adjustment of status if the petition or application is still valid. In addition, the applicant may seek to adjust under another family-based, employment-based, special immigrant, or diversity visa immigrant category for which the applicant is eligible.[40]

Effect on Lawful Status and Unlawful Presence

The fact that a noncitizen is determined to be a grandfathered noncitizen for INA 245(i) purposes does not confer any immigration status on the noncitizen nor does it place the noncitizen in a period of stay authorized by the Secretary of Homeland Security for purposes of stopping the accrual of any unlawful presence pursuant to INA 212(a)(9).[41]

A noncitizen’s nonimmigrant status is not affected by the fact that he or she is eligible to seek 245(i) benefits.[42]

D. Current Family Members of Grandfathered Noncitizens

In general, today’s principal adjustment applicant’s spouse or child(ren)[43] may also adjust status if “accompanying” or “following-to-join” the principal.[44] A spouse or child is “accompanying” the principal when seeking to adjust status together with the principal or within 6 months of when the principal became a permanent resident; the spouse or child is considered to be following-to-join if seeking to adjust more than 6 months after the principal became a permanent resident.[45]

The spouse and child(ren) as of the date of adjustment accompanying (or following-to-join) a principal INA 245(i) applicant (who is a grandfathered noncitizen) are eligible to seek adjustment under 245(i) even though they are not grandfathered noncitizens in their own right. The spouse and child(ren) may also benefit from INA 245(i) provisions allowing applicants to adjust despite an entry without inspection or being subject to the specified adjustment bars.[46] If the spouse and child(ren) were properly inspected and admitted or inspected and paroled (and are not subject to the INA 245(c) bars) they do not need to file a Supplement A. The spouse and child(ren) may simply seek adjustment under INA 245(a) by filing only the Application to Register Permanent Residence or Adjust Status (Form I-485).

1. Grandfathered Principal Beneficiary’s Spouse and Children

A noncitizen may be eligible to adjust as a grandfathered derivative beneficiary under INA 245(i) in his or her own right or as an accompanying (or following-to-join) spouse or child if:

  • The noncitizen demonstrates that he or she was the spouse or child (unmarried and under 21 years of age) of a grandfathered principal beneficiary at the time a qualifying petition or application was properly filed; and

  • The noncitizen is still the spouse or child of the principal beneficiary.[47]

A noncitizen who became the spouse or child of a grandfathered principal beneficiary after the qualifying petition or application was filed may only seek INA 245(i) adjustment through the principal beneficiary as an accompanying (or following-to-join) immigrant.[48] These applicants do not qualify as grandfathered derivative beneficiaries who may adjust in their own right under INA 245(i).[49]

Example: Spouse and Child Acquired After Filing of Principal Beneficiary’s Qualifying Application

Date

Event

January 1, 1998

A noncitizen enters the United States without inspection.

January 1, 2000

An employer files a permanent labor certification application on behalf of the noncitizen. The noncitizen is unmarried at time of filing.

January 1, 2002

The noncitizen marries a noncitizen and has a child.

January 1, 2004

The employment-based immigrant visa petition filed on the noncitizen’s behalf is approved. The noncitizen applies for adjustment of status, as do the spouse and child.

As a principal beneficiary of the qualifying permanent labor certification application, the noncitizen is grandfathered and eligible to file for adjustment under INA 245(i). Because the noncitizen married and had the child after the qualifying application was filed, the spouse and child are not grandfathered derivative beneficiaries and may not adjust in their own right under 245(i). The spouse and child, however, may still seek INA 245(i) adjustment (or INA 245(a) adjustment, if eligible) as the principal beneficiary’s accompanying (or following-to-join) spouse and child under INA 203(d).

Eligibility of Grandfathered Principal Beneficiary’s Spouse or Child

The following chart provides a summary of whether the spouse or child of a grandfathered principal beneficiary may be grandfathered in his or her own right or eligible to accompany or follow to join the grandfathered principal beneficiary.

245(i) Adjustment Eligibility of Grandfathered Principal Beneficiary’s Spouse or Child

When Was Relationship Established?

Eligible as an Accompanying or Following-to-Join Applicant?

Eligible as a Grandfathered Derivative Beneficiary Who May Apply to Adjust Under INA 245(i) Independently from Principal?

Before the qualifying petition or application was filed (on or before April 30, 2001)

Yes, if relationship continues to exist and principal beneficiary is granted LPR status (and remains an LPR)

Yes, on a different basis, whether or not relationship to principal beneficiary continues to exist[50]

After April 30, 2001 but before principal beneficiary adjusts status

Yes, if relationship continues to exist and principal beneficiary is granted LPR status (and remains an LPR)

No

After principal beneficiary adjusts status

No

No

2. Grandfathered Derivative Beneficiary’s Spouse and Children

Derivative beneficiaries of a qualifying immigrant visa petition or labor certification application are grandfathered in their own right. These grandfathered derivative beneficiaries may adjust independently from the principal beneficiary of the grandfathering petition or application. Accordingly, their current spouse and children may be eligible to adjust under the usual accompanying or following-to-join rules.

Continuing Spouse or Child Relationship Required

The accompanying (or following-to-join) spouse or child must continue to have the qualifying relationship with the principal adjustment applicant (grandfathered derivative beneficiary) both at the time of filing and approval of their individual adjustment applications.[51]

Example: Child Derivative Beneficiary Now a Married Adult

Date

Event

July 1, 1999

A noncitizen enters the United States without inspection with his or her child.

April 30, 2001

A family-based 4th preference immigrant visa petition is properly filed on the noncitizen’s behalf and was approvable when filed. The noncitizen is the principal beneficiary of the immigrant petition. The noncitizen’s child is a derivative beneficiary. For the purposes of adjustment of status under INA 245(i), both the noncitizen and the noncitizen’s child are grandfathered.

June 1, 2008

The child is now an adult and marries another noncitizen.

March 1, 2010

USCIS approves an employment-based petition filed on behalf of the former child and the former child files an application for adjustment of status seeking to utilize INA 245(i).

In this example, the noncitizen’s qualifying petition serves to grandfather both the noncitizen and the noncitizen’s child. After marrying, the child is no longer considered a child for classification purposes and therefore can no longer adjust with the grandfathered principal beneficiary as an accompanying (or following-to-join) child. However, as a grandfathered derivative beneficiary, the former child may independently adjust under a new basis. The former child’s spouse may seek to adjust as an accompanying (or following-to-join) spouse. The spouse, while not a grandfathered noncitizen based on the 1999 petition in this example, may adjust under INA 245(i) as a derivative of his or her spouse[52] if necessary to overcome any applicable adjustment bars, or may adjust under INA 245(a) (if eligible).[53]

The following chart provides a summary of when the spouse or child of a grandfathered derivative beneficiary of a qualifying immigrant visa petition or permanent labor certification application may be eligible to accompany or follow-to-join under INA 245(i).

245(i) Adjustment Eligibility of Grandfathered Derivative Beneficiary’s Spouse or Child

When Was Relationship Established?

Eligible as an Accompanying or Following-to-Join Applicant?

Before grandfathered derivative beneficiary adjusts status

Yes, if relationship continues to exist and derivative beneficiary remains an LPR[54]

After grandfathered derivative beneficiary adjusts status

No

E. Physical Presence Requirement

If claiming to be a grandfathered noncitizen based on a qualifying petition or application that was filed after January 14, 1998, the applicant must show that the principal beneficiary of the petition or application was physically present in the United States on December 21, 2000 to adjust under INA 245(i).[55]

Because this physical presence requirement applies only to the principal beneficiary, the physical presence of any derivative beneficiaries on December 21, 2000 is not relevant. Grandfathered derivative beneficiaries, however, must show that the grandfathered principal beneficiary was physically present on December 21, 2000, if the qualifying petition or application was filed after January 14, 1998.

The physical presence requirement does not apply to applicants who qualify for INA 245(i) based on immigrant visa petitions and permanent labor certification applications filed on or before January 14, 1998.

Example: Principal Beneficiary

Date

Event

June 1, 1999

A noncitizen enters the United States without inspection.

April 30, 2001

A 3rd preference Petition for Alien Relative (Form I-130) is properly filed on behalf of the noncitizen and which was approvable when filed.

In this example, the applicant is the principal beneficiary of a qualifying petition. Since the petition was filed after January 14, 1998, the noncitizen must show that he or she was physically present in the United States on December 21, 2000, to be a grandfathered noncitizen and adjust under INA 245(i).

Example: Derivative Beneficiary Spouse Later Divorces

Date

Event

July 1, 1999

A married couple enter the United States without inspection.

February 1, 2000

A permanent labor certification application is properly filed on behalf of one spouse and was approvable when filed.

That spouse becomes the principal beneficiary of the application, and the other spouse becomes the derivative beneficiary.

January 20, 2005

The married couple divorces.

October 12, 2005

The derivative beneficiary remarries an LPR.

The LPR files a petition for the derivative beneficiary as the spouse of an LPR.

In this example, the qualifying permanent labor certification application serves to grandfather the derivative beneficiary. The fact that the principal beneficiary and the derivative beneficiary are now divorced is not relevant for INA 245(i) purposes. The derivative beneficiary is a grandfathered noncitizen in his or her own right and eligible to seek adjustment under INA 245(i) independently of the principal beneficiary, if the principal beneficiary was physically present in the United States on December 21, 2000.

Footnotes


[^ 1] Grandfathered principal beneficiaries are also known as the direct beneficiary or named beneficiary. Grandfathered derivative beneficiaries are the principal beneficiary’s spouse or unmarried children under 21 years of age at the time the qualifying petition or application was filed. For more information, see Section C, Beneficiary of Qualifying Immigrant Visa Petition or Permanent Labor Certification Application [7 USCIS-PM C.2(C)].

[^ 2] See 8 CFR 245.10(a)(1)(i).

[^ 3] See 8 CFR 245.10(a)(1)(i)(A)-(B).

[^ 4] See INA 204.

[^ 5] See INA 212(a)(5)(A).

[^ 6] This form is no longer in use. The form was replaced by Application for Permanent Employment Certification (ETA Form 9089 (PDF)).

[^ 7] See 8 CFR 245.10(a)(2).

[^ 8] “Legacy INS” refers to the predecessor agency of USCIS that existed during the time of the 245(i) qualifying filing period.

[^ 9] Field offices and service centers were required to retain evidence of the mailing date as part of the record of proceeding for all immigrant visa petitions received between May 1, 2001 and May 3, 2001. INS also affixed a stamp stating “Filed Prior to 245(i) Sunset” on all immigrant visa petitions received on or after May 1, 2001 that qualified as timely filed.

[^ 10] It was not uncommon for there to be a discrepancy between the date INS physically received the filing and the filing date shown in INS electronic records (the latter being the date INS processed the check or money order for payment of the filing fee). In some offices, the sheer volume of petition filings delayed recording the system filing date by up to several weeks or even months. If the applicant is a derivative grandfathered beneficiary or accompanying (or following-to-join) spouse or child, an officer may need to resolve any discrepancy in the filing date by reviewing the principal grandfathered beneficiary’s A-file.

[^ 11] See Matter of Butt (PDF), 26 I&N Dec. 108 (BIA 2013). See Subsection 2, Approvable When Filed [7 USCIS-PM C.2(B)(2)].

[^ 12] See 8 CFR 245.10(a)(3).

[^ 13] See Subsection 1, Properly Filed [7 USCIS-PM C.2(B)(1)].

[^ 14] See Ogundipe v. Mukasey (PDF), 541 F.3d 257, 261 (4th Cir. 2008) (“’Meritorious’ means ‘meriting a legal victory’ or ‘having legal worth’. . .”).

[^ 15] See INA 101(b)(1).

[^ 16] See Matter of Jara Riero and Jara Espinol (PDF), 24 I&N Dec. 267 (BIA 2007). See Lasprilla v. Ashcroft (PDF), 365 F.3d 98 (1st Cir. 2004).

[^ 17] See Matter of Butt (PDF), 26 I&N Dec. 108 (BIA 2013).

[^ 18] USCIS will consider evidence of fraud and the potential revocation of the approved visa petition when considering whether an approved petition was approvable when filed.

[^ 19] See Chung Hou Hsiao v. Hazuda (PDF), 869 F.3d 1034 (9th Cir. 2017) and Echevarria v. Keisler (PDF), 505 F.3d 16 (1st Cir. 2007). Changed circumstances after filing may include: an employer going out of business or a valid, bona fide marriage ending in divorce before the noncitizen could adjust status.

[^ 20] See 8 CFR 245.10(a)(4).

[^ 21] See 8 CFR 245.10(a)(3) and 8 CFR 245.10(i). Even though the withdrawn, denied, or revoked petition or application may still serve to grandfather the beneficiary, the petition or application cannot serve as the underlying basis for adjustment (unless the petition remains valid under INA 204(j)). The applicant must still have an approved petition or be selected for a diversity visa to establish an eligible basis for adjustment under INA 245(i). See Chapter 3, Eligibility and Filing Requirements, Section A, Adjustment Eligibility under INA 245(i) [7 USCIS-PM C.3(A)] and Chapter 4, Documentation and Evidence, Section D, Demonstrating Underlying Basis for Adjustment [7 USCIS-PM C.4(D)].

[^ 22] See INA 203(g) and 8 CFR 205.1(a)(1).

[^ 23] See 8 CFR 245.10(a)(3).

[^ 24] See Black’s Law Dictionary (11th ed. 2019).

[^ 25] See 66 FR 16383, 16384 (March 26, 2001). See Matter of Villareal-Zuniga (PDF), 23 I&N Dec. 886 (BIA 2006). See Matter of Harry Bailen Builders, Inc. (PDF), 19 I&N Dec. 412 (Comm. 1986).

[^ 26] See 8 CFR 204.2(h)(2). See Matter of Villareal-Zuniga, 23 I&N Dec. 886 (BIA 2006). See Mansour v. Holder, 739 F.3d 412 (8th Cir. 2014). See Castro-Soto v. Holder, 596 F.3d 68 (1st Cir. 2020). See 20 CFR 656.30(c)(2).

[^ 27] This is because the noncitizen has already acquired the only intended benefit of 245(i): LPR status. See 66 FR 16383, 16384 (March 26, 2001).

[^ 28] See 8 CFR 245.10(j).

[^ 29] See INA 203(d). See INA 245(i)(1)(B). See 8 CFR 245.10(a)(1)(i). Under INA 245(i), spouses and children are only included as grandfathered derivative beneficiaries if they are “eligible to receive a visa under section 203(d).” Immediate relatives of U.S. citizens are not included.

[^ 30] Where the relationship was created after the qualifying petition or application was filed, the grandfathered principal beneficiary’s current spouse or child may still adjust under INA 245(i) as an accompanying (or following-to-join) adjustment applicant. See Section D, Current Family Members of Grandfathered Noncitizens, Subsection 1, Grandfathered Principal Beneficiary’s Spouse and Children [7 USCIS-PM C.2(D)(1)]. Such child or spouse would not be a grandfathered noncitizen in his or her own right but would be eligible to use INA 245(i) as the derivative spouse or child of a grandfathered noncitizen. See Matter of Estrada and Estrada (PDF), 26 I&N Dec. 180 (BIA 2013).

[^ 31] See Chapter 1, Purpose and Background, Section C, Overcoming INA 245(a) Adjustment Ineligibility [7 USCIS-PM C.1(C)].

[^ 32] For information about derivative family members acquired after the qualifying petition or labor certification application, see Section D, Current Family Members of Grandfathered Noncitizens [7 USCIS-PM C.2(D)]. 

[^ 33] See INA 203(d).

[^ 34] The derivative beneficiary is still required to seek adjustment under a family-based, employment-based, special immigrant, or diversity visa immigrant category. See Chapter 3, Eligibility and Filing Requirements, Section A, Adjustment Eligibility under INA 245(i) [7 USCIS-PM C.3(A)], and Chapter 4, Documentation and Evidence, Section D, Demonstrating Underlying Basis for Adjustment [7 USCIS-PM C.4(D)].

[^ 35] See Section D, Current Family Members of Grandfathered Noncitizens [7 USCIS-PM C.2(D)].

[^ 36] See Chapter 3, Eligibility and Filing Requirements, Section A, Adjustment Eligibility under INA 245(i) [7 USCIS-PM C.3(A)].

[^ 37] If the petition or labor certification application was filed after January 14, 1998, and on or before April 30, 2001, the principal beneficiary must have been physically present in the United States on December 21, 2000. See INA 245(i)(1)(C). See Section E, Physical Presence Requirement [7 USCIS-PM C.2(E)].

[^ 38] On the basis of the previously used petition or application. The applicant may be eligible for 245(i) adjustment on a different basis.

[^ 39] See 8 CFR 245.10(a)(1)(i).

[^ 40] See 8 CFR 245.10(h).

[^ 41] See 8 CFR 245.10(m).

[^ 42] See 8 CFR 245.10(l). Lawful immigration status for a nonimmigrant is defined in 8 CFR 245.1(d)(1)(ii).

[^ 43] The child must be unmarried and under 21 years of age. See INA 101(b)(1).

[^ 44] See INA 203(d). See 22 CFR 40.1(a)(1). See Part A, Adjustment of Status Policies and Procedures, Chapter 6, Adjudicative Review [7 USCIS-PM A.6].

[^ 45] See 9 FAM 503.2-4(A)(c), If Spouse or Child Acquired Prior to Admission, and 9 FAM 503.2-4(A)(d), If Spouse or Child Acquired Subsequent to Admission.

[^ 46] See Chapter 1, Purpose and Background, Section C, Overcoming INA 245(a) Adjustment Ineligibility [7 USCIS-PM C.1(C)].

[^ 47] For more information on adjusting as a grandfathered derivative beneficiary, see Section C, Beneficiary of Qualifying Immigrant Visa Petition or Permanent Labor Certification Application, Subsection 2, Special Considerations for Derivative Beneficiaries [7 USCIS-PM C.2(C)(2)].

[^ 48] See INA 203(d).

[^ 49] Similarly, the spouse of a qualified principal beneficiary who married the principal beneficiary only after the principal beneficiary adjusted under INA 245(i) is not eligible to adjust as a grandfathered derivative beneficiary under 245(i). See Landin-Molina v. Holder (PDF), 580 F.3d 913 (9th Cir. 2009).

[^ 50] The spouse remains eligible to adjust (on a different basis) even if the spouse later became divorced from the principal beneficiary and the child remains eligible to adjust (on a different basis) even if the child has since married or turned 21 years of age.

[^ 51] See 8 CFR 103.2(b)(1). See 9 FAM 502.1-1(C)(2)(b)(2)(A), Basis for Following-to-Join. In contrast, grandfathered derivative beneficiaries only need to establish the qualifying relationship existed at the time the qualifying petition or labor certification application was properly filed. This is a unique aspect of INA 245(i) adjustment. Grandfathered derivative beneficiaries do not need to show the qualifying relationship continues to exist at the time they seek adjustment unless they are adjusting as an accompanying or following-to-join spouse or child of the principal beneficiary. For more information on qualifying to adjust status as a principal applicant’s accompanying or following-to-join spouse or child, see Part A, Adjustment of Status Policies and Procedures, Chapter 6, Adjudicative Review [7 USCIS-PM A.6].

[^ 52] See INA 203(d).

[^ 53] See Matter of Estrada (PDF), 26 I&N Dec. 180 (BIA 2013).

[^ 54] See FAM 502.1-1(C)(2)(b)(2)(f), Effect of Principal Alien’s Naturalization on Derivative Status.

[^ 55] See INA 245(i)(1)(C) and 8 CFR 245.10(n).

Current as of July 30, 2021