CASE: Employment Based Adjustment of Status (Derivative Applicant) / 245(i)
CLIENT: Filipino
LOCATION: Indiana
Our Filipino client came to the U.S. in June 2001 with a valid B-2 visitor’s visa. He has remained in the United States since then. He married his current spouse in June 2002 and she obtained her permanent residency in 2016 through an employment petition. Our client’s wife was the beneficiary of labor certification that was filed before April 30, 2001 and she was physically present in the United States before December 2000.
Our client contacted us around November of 2016 for consultation and sought legal assistance for his adjustment of status. He was not sure whether he could be a derivative applicant of the adjustment of status based on his wife’s I-140 approval and his eligibility under INA 245(i). Nonetheless, after consultation, we determined that he is eligible for adjustment of status under INA 245(i). Our client retained us on December 1, 2016.
Section 245(i) of the INA allows certain foreign nationals to become permanent residents of the United States despite entering without inspection (EWI) or overstaying (if beneficiary of petitions filed not by an immediate relative). Immigrants are barred from adjusting their status if they entered the United States without first being inspected and admitted by a Customs and Border Patrol officer and if they have either failed to maintain lawful status or been unlawfully employed in the country, with certain exceptions. Section 245(i) was first added to law in 1994 to allow certain people who otherwise would not be eligible to adjust their status to be able to do so upon payment of a $1,000 fine.
Four years later, on January 14, 1998, Congress phased Section 245(i) out of law. Immigrants and their families who had already begun the process of changing their status under Section 245(i) by January 14, 1998 were grandfathered into the section’s benefits. However, this left thousands of otherwise qualified persons who had not begun the process unable to adjust status in the United States. They could not return to their countries to begin the legal process of obtaining their permanent residency in the United States also without being subject to either a three- or a 10-year bar upon returning to the United States.
On December 21, 2000, Congress extended the qualifying date for Section 245(i) benefits to April 30, 2001. This law allowed immigrants who had labor certifications or visa petitions filed on their behalf between 1998 and April 30, 2001, to qualify for adjustment of status. Those who were beneficiaries of petitions filed prior to January 14, 1998 could still adjust despite an EWI record, and those people do not have to meet the December 2000 physical presence requirement.
However, aforementioned requirements were not met for our client since he was not a beneficiary of any I-130 / I-140 petition which was filed prior to April 30, 2001. He was not also physically present in the United States prior to December 2000. Nonetheless, there is a controlling BIA case for our client’s situation. In Matter of Estrada and Estrada, 26 I&N Dec. 180 (BIA 2013), the BIA held that:
“Although not grandfathered, qualifying after-acquired spouses and children are still able to benefit from section 245(i) of the Act in certain circumstances. The Supplementary Information to the interim rule clarifies that a dependent spouse or child – if eligible under section 203(d) of the Act – who is accompanying or following to join a grandfathered adjustment applicant is “considered to be grandfathered” if the qualifying relationship existed before the grandfathered alien adjusts his or her status…. Such spouses and children are able to benefit from section 245(i) of the Act by virtue of their status as dependents under section 203(d), which provides that a spouse or child who is accompanying or following to join a principal beneficiary of an immigrant visa is entitled to the same status as that alien. Thus, when a grandfathered alien applies for adjustment of status under section 245(i) as the principal adjustment applicant, his or her dependent spouse or children are eligible to adjust status under that section notwithstanding the fact that they are not grandfathered aliens.
As mentioned above, our client married his wife in June 2002. His wife filed her adjustment of status application by virtue of an approved and current I-140 petition filed for her and invoked INA 245(i) in the process as the principal beneficiary. By virtue of 245(i), our client’s wife obtained her permanent residency in September 2016. Thus, based on Matter of Estrada and Estrada, our office argued that our client is able to benefit from section 245(i) by virtue of his status as spouse who is following to join a principal beneficiary under 245(i) since the qualifying relationship (their marriage in 2002) existed before the grandfathered alien (our client’s wife) adjusted her status (adjustment in 2016 through 245(i).
On December 20, 2016, our office filed his I-485 adjustment of status application and I-485 Supplement A under the 245(i) category for our client. Everything went smoothly and the receipt notices and fingerprint appointment all came on time. Eventually, on July 19, 2017, our client’s I-485 adjustment of status application was approved.