CASE: Adjustment of Status / 245i / I-140 (EB-3)
APPLICANT: Ecuadorian BAS/HVAC Controls Technician
LOCATION: New York
Our client is from Ecuador. His current employer was willing to do an immigration petition for him, third-preference. Our client has more than 2 years of experience as a HVAC Technician. After talking to our client, our firm concluded that his employer can petition him as a BAS/HVAC Controls Technician. Based on our client’s education and work background, our office determined that he eligible for EB-3 classification and our client eventually retained us in May 2017.
Prior to filing PERM, our firm prepared the prevailing wage request, job order, advertisements, internal job posting, recruitment report, and all other steps which are important pre-PERM filing. Take note that PERM could be filed at least 60 days from the job posting date or 30 days from the last ad. On June 2, 2017, the prevailing wage request was filed. After we got the PW determination, our office filed the job order on August 21, 2017. On October 27, 2017, we promptly filed PERM.
However, on April 19, 2018, the Department of Labor issued a request for audit. The DOL requested documents from Petitioner to determine whether the recruitment process was done properly. In response to the Audit request, our office prepared the response to Audit brief along with Employer’s declaration, notice of filing, and recruitment documentation on May 16, 2018.
Eventually, on July 11, 2018, the PERM Labor Certification was approved.
We then proceeded with the I-140 Petition filing. We submitted the “ability to pay” letter for the I-140 petition application. We included the job offer letter, past experience letters, employer’s tax records, and other necessary supporting documents. The I-140 Petition was filed on August 8, 2018 via premium processing service. Eventually, on August 17, 2018, the I-140 EB3 Petition for our client was approved without any Request for Evidence (RFE).
Then, he retained our office for the adjustment of status applications for him and his family members. In fact, our client failed to maintain his status in the United States; nonetheless, he could be eligible to file adjustment of status under the INA Section 245(i). Our client is the derivative beneficiary of an I-130 F4 petition filed by his US Citizen uncle to his father filed back in September 1989 and approved in December 1989. Our client was 10 years old at that time.
INA Section 245(i) allows a person to apply to adjust status notwithstanding the fact that he overstayed his immigration status. Thus, a person who entered legally but overstayed can adjust status based on an approved and current I-140 EB3 Petition if he paid the special fee required of $1000 and files Supplement A to I-485, as long as he is the beneficiary or derivative beneficiary of any approvable immigrant petition under section 204 (including I-130 F4 Petitions) that was filed on or before April 30, 2001 and proves physical presence as of December 21, 2000. INA 245(i). Beneficiaries or derivative beneficiaries who were petitioned prior to January 14, 1998 do not have to prove physical presence in 2000.
According to the Robert Bach’s “Accepting Applications for Adjustment of Status Under Section 245(i) of the “Immigration and Nationality Act” memorandum (“Bach Memo June 10, 1999).
“Section 245(i) defines the term “beneficiary” to include a spouse or child eligible to receive a visa under section 203(d) of the Act’ This applies to spouses or children ‘accompanying or following to join’ the principal alien…. The spouse or child of a grandfathered alien as of January 14 is also grandfathered for 245(i) purposes. This means that the spouse or child is grandfathered irrespective of whether the spouse or child adjusts with the principal. The pre-January 15 spouse or child also are grandfathered even after losing the status of spouse or child, such as by divorce or by becoming 21 years of age…
Often, a principal alien who has filed a visa petition or labor certification application will have a “child” who reaches the age of 21, and thus no longer meet the statutory definition of child, before the petition or application is approved or the principal alien adjusts status. However, such an “aged-out” beneficiary will remain a beneficiary for the purpose of determining whether he or she may use section 245(i) to adjust status.”
(Bach Memo June 10, 1999)
Thus, since our client was the derivative beneficiary of an I-130 F4 Petition filed in September 1989, which was before January 14, 1998, he and his family are eligible for adjustment of status by virtue of INA 245(i) despite their overstay.
Our office filed their I-485 adjustment of status applications under the 245(i) category for our client on August 29, 2018. Everything went smoothly and the receipt notices and fingerprint appointment all came on time. We thoroughly prepared our clients prior to their interviews as well.
On March 20, 2019, our client was interviewed at the Queens, New York USCIS Field Office. Attorney Sung Hee (Glen) Yu, Esq. from our office accompanied our clients as well. Eventually, their green card applications were approved by the USCIS on the same day of the interview.