USCIS Clarifies Eligibility Under § 245(i)
Although § 245(i) of the Immigration and Nationality Act sunset on April 30, 2001, it still is
a boon for non-citizens who are considered “grandfathered” under this provision. A grandfathered
individual can still adjust status in the US to permanent residence even though he or she would
otherwise be barred by virtue of an immigration violation or by entering the US without
inspection. An individual who is eligible to adjust under § 245(i) has to pay a $1,000
surcharge. If such an individual is unable to adjust status in the US, he or she would have to
obtain the immigrant visa at a US consulate in the home country. Leaving the US after being
unlawfully present can trigger either three or ten year bars against re-entry into the country. §
245(i), therefore, is crucial for many people who would otherwise be caught in a federal Catch
Note that § 245(i) is not an amnesty. A person eligible under § 245(i) must still have a basis
to adjust status such as an immigrant visa petition approval or a win under the diversity green
card lottery. To be grandfathered under § 245(i) of the Act, the non-citizen must be the
beneficiary of an immigrant visa petition or application for labor certification that was filed
on or before April 30, 2001, and meets applicable statutory and regulatory requirements.
On March 9, 2005, the USCIS issued a memo, signed by William R. Yates, Associate Director for
Operations (HQOPRD 70/23.1), clarifying who can be grandfathered under § 245(i). The memo is
noteworthy because it clarifies that there is no restriction on the number of times an alien may
properly seek to adjust status under § 245(i). In the past, the USCIS frequently took the
position that an alien could file under § 245(i) only once. By way of an example, if an alien
first filed an adjustment of status application based on an approved I-140 immigrant visa
petition, and if the adjustment application got denied, this individual could not file for
adjustment of status under another basis. Thus, if this individual subsequently won the diversity
lottery, he or she may not have been permitted to file another adjustment application under §
245(i). The USCIS took the position that such an alien could not file two applications under §
245(i), even though there was nothing in the statute that prevented one from doing so. This
prohibition was also not applied universally across the board, and many USCIS offices permitted
more that one filing under § 245(i) while others did not. The new memo correctly clarifies that
a grandfathered alien is not limited by just one adjustment application.
The memo also clarifies under what circumstances a derivative spouse or child can grandfather
under § 245(i). If a spouse was already married to an alien who was the beneficiary of a labor
certification or immigrant visa petition filed on or before April 30, 2001, then this spouse
would independently grandfathered under § 245(i) even if the marriage is subsequently
terminated. Thus, the derivative spouse could file an adjustment application under a wholly
independent basis separate from the spouse’s immigrant visa petition. The same principle applies
to a derivative child. The memo, on the other hand, distinguishes between a spouse who was
married to a grandfathered alien prior to April 30, 2001, and a spouse who marries such an alien
after April 30, 2001. In the latter situation, such a spouse cannot independently grandfather
and is limited to filing an adjustment of status application under § 245(i) as a derivative of
the spouse who has been grandfathered. The memo notes that the qualifying relationship must
continue to exist at the time the principal alien adjusts status in order for the spouse or child
to obtain the derivative benefit.
According to the memo, if an “after acquired” spouse - one who married a grandfathered alien
after April 30, 2001 – subsequently divorces, such a spouse is not considered to be grandfathered
and may not file for adjustment of status under § 245(i) either independently or as a dependent
of the principal alien. For further details, please read the memo.
USCIS Memo On § 245(i).
About The Author
Cyrus D. Mehta, a graduate of Cambridge University and Columbia Law School, practices immigration law in New York City. He is the Chair of the Board of Trustees of the American Immigration Law Foundation (AILF) and recipient of the 1997 Joseph Minsky Young Lawyers Award. He is also Secretary of the Association of the Bar of the City of New York (ABCNY) and former Chair of the Committee on Immigration and Nationality Law of the same Association. The views expressed in this article do not necessarily represent the views of ABCNY or AILF. He frequently lectures on various immigration subjects at legal seminars, workshops and universities and may be contacted in New York at 212-425-0555.
The opinions expressed in this article do not necessarily reflect the opinion of ILW.COM.
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