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Listserv Q&A for
"Advanced Issues In Adjustment Of Status"

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During the Q&A of July 23, 2003 you thought that, in the following scenario the client is protected under 245i of January 1998. Please explain why.

I-130 Second preference petition for a minor child is filed on October 6, 1997 (his pdate). I-130 petition was approved on 11/17/1997. F2A Child was living abroad. His date of birth is 08/08/1981. He obtains a V2 visa at the American Embassy on 6/15/2002 valid to 08/07/2002 (because he turns 21 on 08/08/02). He enters the U.S. on 08/03/2002 and he gets an I-94 valid to 08/02/2004. His I-94 is valid to 08/2/2004 Is he accumulating illegal presence just because by now he is not entitled to a V-2 status. He is over 21 and automatically converted to F2B. OR, is he considered to be in status just because the I-94 says valid to 8/2/2004? Is he covered under CSPA? He did turn 21 after 08/06/2002. How could we file his 485 if CSPA does not apply to Vs or K-4s? You suggested to file it under 245(i), but he was not here before December 20, 2000. Then you suggested to file it under the first 245(i). Is that possible??? How can I argue it with BCIS?

Answer by Ronald Klasko:

This person is eligible to adjust status only if the person is grandfathered under section 245(i). If not grandfathered, the only option is applying for an immigrant visa at a U.S. Consulate. Before this option is pursued, an analysis would need to be made as to whether the person is subject to a 3 year or 10 year (or permanent) bar; and, if so, the possibility for obtaining a waiver of the bar to admissibility.