Seguritan US Immigration Articles

Adjustment of Status of 245(i) Derivative Beneficiary

An alien who entered the U.S. without inspection, worked without authorization or overstayed a temporary visa is generally not eligible to adjust status to that of a lawful permanent resident. Congress passed a law in 1994 which allowed aliens, who were otherwise ineligible, to adjust their status in the United States.

After Section 245(i) expired, Congress extended it and allowed an alien to adjust status as long as he was the beneficiary of a labor certification application or immigrant visa petition filed on or before April 30, 2001. If an alien is the beneficiary of a qualifying petition or application and has paid the $1,000 penalty fee, his eligibility to adjust status is preserved.

At the same time, if the qualifying petition or labor certification was filed after January 14, 1998 the alien must be physically present in the U.S. as of December 21, 2000 in order to be eligible for Section 245(i) benefits.

The law allows “grandfathering” meaning the alien continues to benefit under 245(i) until he adjusts status and even on a basis other than the qualifying immigrant visa petition or labor certification.

Two types of aliens can be grandfathered under 245(i). The first refers to principal grandfathered aliens or the beneficiaries of visa petitions or labor certifications filed before April 30, 2001 if the petition or application was properly filed and approvable when filed. The second category pertains to spouses and children of principal grandfathered aliens, also called derivative grandfathered aliens.

To illustrate this, suppose that a nursing aide named Ellen entered the U.S. in 1995 but overstayed her tourist visa and has been living in the U.S. ever since. Suppose that she was the beneficiary of a labor certification application filed a few weeks before April 30, 2001 by her employer, a nursing home which unfortunately went out of business a few years later.

In 2006, let’s say another employer, this time a hospital, files another labor certification application and later an immigrant visa petition for Ellen. Can she adjust status? Because she is “grandfathered” under the old law, when her priority date is reached she can file for adjustment of status, notwithstanding her unlawful presence of more than 10 years.

In this example, Ellen is the principal grandfathered alien. Since the qualifying labor certification was filed after January 14, 1998 but before April 30, 2001, she must show when she finally applies for adjustment of status on the basis of the hospital’s visa petition that she was physically present in the U.S. on December 21, 2000.

If Ellen has a husband and daughter, they can be derivative grandfathered aliens who can apply for permanent resident status without the need of showing the required physical presence in the U.S. because Ellen meets that requirement.

But what if Ellen’s husband, a derivative grandfathered alien, is the beneficiary of an approved employment-based visa petition and his priority date was reached earlier, but he could not show physical presence in the U.S. as of December 21, 2000. Can he qualify for a 245(i) adjustment?

The Board of Immigration Appeals’ ruling in Matter of Svetislav Ilic tells us that he can. In that case, the respondent’s wife was the beneficiary of a family-based petition filed by her U.S. citizen sister. The respondent entered the U.S. without inspection in 2005 but he was the beneficiary of an approved I-140 petition with a priority date of April 22, 2004.

Removal proceedings were brought against him and he sought adjustment of status under Section 245(i) as a relief. The government opposed his application and said that since he is not adjusting on the basis of his wife’s family-based petition, he has become a “principal adjustment applicant” and he needs to demonstrate that he was in the U.S. as of December 21, 2000.

The BIA held that if the respondent’s wife meets the physical presence requirement, then she is grandfathered for 245(i) eligibility, and so is respondent even if he is adjusting on the basis of his employer’s I-140 petition.

Great News for Spouse and Children of Green Card Holders

The August 2013 Visa bulletin shows that the Family-based 2A preference category which refers to spouses and children of lawful permanent residents (LPR) is current for all countries.

This means that starting August 1, those who are in the U.S. may file for adjustment of status while those who are processing their immigrant visa application abroad may be scheduled for visa interview.

In announcing the visa number availability, the Department of State said that the F2A preference category will be expected to remain current for several months. Although there is a large number of F2A registrants, the Department of State explained that it had taken this step to generate an increased level of demand since not enough applicants have been actively pursuing final action on their case. This will ensure that all of its available visa numbers will be fully utilized.

The Department of State also said that at some point during Fiscal Year 2014 which covers October 1, 2013 through September 30, 2014 the cutoff date could be retrogressed as a corrective action. Note that in July 2013, the cutoff date was October 8, 2011.

In light of this development, beneficiaries of family-based 2A petitions, regardless of their priority date, should file their adjustment applications. Those who have no I-130 petition should concurrently submit their I-485 and I-130 petition.

A pending adjustment application, will allow them to remain in the U.S. and work until their application is adjudicated. They may also be allowed to travel.

Eligible to file for adjustment of status are those lawfully present in the United States or those who are beneficiaries under Section 245(i) of the Immigration and Nationality Act. To be covered under Section 245(i), an alien must be the beneficiary of an immigrant visa petition or labor certification filed on or before April 30, 2001. If the visa petition or labor certification was filed between January 14, 1998 and April 30, 2001, the alien must prove that he/she was in the U.S. on December 21, 2000.

The other family-based categories will not advance significantly from the July 2013 visa availability. F1 preference which refers to unmarried sons and daughters of U.S. citizens will advance by 3 months worldwide (9/1/06) and by 6 months for the Philippines (1/1/01).

F2B (unmarried sons and daughter 21 or older of LPRs) will advance by only a month worldwide (12/1/05) and none for the Philippines (12/22/02).

F3 (married sons and daughters of US citizens) will advance by 2 months worldwide (12/8/02) and 1 week for the Philippines (12/1/92) while F4 (brothers and sisters of U.S. citizens) will advance by 1 month worldwide (6/22/01) and 3 weeks for the Philippines (1/8/90).

There will be little or no change in the employment-based categories (EB) except for India’s EB2 category which will advance from September 1, 2004 to June 1, 2008. EB1, EB2, EB4 and EB5 will remain current. The EB3 for skilled workers and unskilled workers will have the same cutoff date of (1/1/09) worldwide but will advance by 3 weeks to 10/22/06 for the Philippines.

New Waiver Rule Shortens Family Separation

Beginning March 4, 2013, certain individuals will be allowed to apply for a provisional waiver of unlawful presence before departing the United States to attend their immigrant visa interview abroad.

The Department of Homeland Security (DHS) made the announcement regarding the provisional waiver of unlawful presence on January 2, 2013 as it posted the final rule in the Federal Register.

Under the new procedure, immediate relatives (i.e., spouses, children and parents) of U.S. citizens who are present in the U.S. may request a provisional waiver of their unlawful presence prior to departing the U.S. for consular processing of their immigrant visa application.

Existing regulations would require them to leave the U.S. to apply for an immigrant visa abroad, appear at the visa interview, wait for the denial of their visa application because of their inadmissibility due to unlawful presence – which was itself triggered by their very departure – and then file the unlawful presence waiver application from outside the U.S. and wait for its approval there.

This existing process could take anywhere from a several months to well over one year. Because of the risks, costs and hardships involved, many individuals chose to remain undocumented in the U.S.

The new provisional waiver process was designed to alleviate the hardships caused by the lengthy separation of U.S. citizens from their immediate relatives by reducing the amount of time that they are separated.

The provisional waiver applicant must be an immediate relative of a U.S. citizen, inadmissible solely because of unlawful presence, and demonstrate that the denial of the waiver would result in extreme hardship to the qualifying U.S. citizen relative.

Those who do not qualify for the provisional waiver, perhaps because the required showing of extreme hardship was not made or because they were inadmissible for other or additional grounds such as fraud or misrepresentation or prior removal, may still avail of the existing process which requires departure from the U.S. and filing of the waiver application abroad.

The application will be made on a form yet to be released, I-601A Application for a Provisional Unlawful Presence Waiver, along with a filing fee of $585 and a biometrics fee of $85. More information about the filing process will come out in the coming weeks.

Before publishing the final rule, the DHS considered more than 4,000 comments received in response to the proposed rule released in April last year, a large majority of which were in support of the new process.

To address the concern of those who commented that the process provides a “backdoor amnesty”, the DHS reiterated that the provisional waiver is discretionary and does not guarantee admission into the U.S., and that it does not grant any lawful immigration status, create a period of authorized stay or authorize any interim benefits like employment authorization or advance parole.

One of the important changes in the final rule pertained to the ability of applicants to apply again in case of a denial. Unlike the proposed rule which provided that aliens denied the provisional waiver must go through the existing process, the final rule now allows them to file another Form I-601A based on the original approved immigrant visa petition and if their cases are still pending with the Department of State (DOS). They would need to notify the DOS of their intent to file a new Form I-601A.

Under the final rule, an alien in removal proceedings may apply for the provisional waiver if his proceedings have been administratively closed and not recalendared at the time of filing the I-601A; if the proceedings were terminated or dismissed; or if the Notice to Appear was cancelled by the Immigration and Customs Enforcement.

Income Requirements for the Affidavit of Support

In a family-based visa petition, the petitioner must submit an affidavit of support to show that the intending immigrant has adequate means of financial support and will not become a public charge, or someone who depends on the government for subsistence. A person who is likely to become a public charge is inadmissible or not eligible to become a lawful permanent resident.

The sponsor in an affidavit of support (Form I-864) must be a U.S. citizen, national or a lawful permanent resident, at least 18 years old, and domiciled within the United States or a U.S. territory or possession.

The rules require a sponsor to have the means to maintain an annual income equal to at least 125% of the Federal poverty line for the sponsor’s household size. The household size for purposes of Form I-864 includes the immigrant being sponsored as well as all immigrants previously sponsored.

Take for example a U.S. citizen who filed an I-130 petition for his parent and now must submit an affidavit of support. If the petitioner has a spouse and one dependent child, he must have a minimum income of $27,937, which is 125% of the poverty guideline for a four-member household.

If the sponsor’s income is not enough, assets of the sponsor, the sponsored immigrant, and other household members may be counted. Another option is to find a joint sponsor who meets the financial requirements.

To prove that the sponsor’s income meets 125% of the poverty guidelines, a copy of the latest tax return is usually determinative. However, immigration authorities may request proof that the sponsor has sufficient current income and the sponsor may need to provide current pay stubs and an employer letter.

Petitioners who are self-employed or have a business that shows a loss in their tax returns may still qualify as a sponsor if they have enough income or assets that are readily available or could be converted into cash within one year. Examples of these assets include savings, stocks and bonds, and personal property.

If real estate sought to be included as an asset is situated in an area with a depressed real estate market, the examiner might not be convinced that it is “readily convertible to cash” within one year. Furthermore, if the property is underwater or subject to debt greater than its current market value, the examiner might exclude it as substitute for income.

“Income” includes income from employment, pension, interest income, dividends, alimony and child support. Receipt of means-tested public benefits does not disqualify a petitioner from sponsoring an immigrant, although these benefits do not always count as income. For instance, supplemental security income (SSI), food stamps and Medicaid are not income, but unemployment compensation and workers’ compensation may be included.

Failure to file tax returns sometimes arises in the case of petitioners who have worked on a “cash basis”. In some cases, the tax returns also show incorrect filing status (such as filing as single when married) and improper dependent claims. Petitioners must make sure that they have properly filed all necessary tax returns, and if they did not, that they file amended or late-filed tax returns.

Concealment or misrepresentation of material facts relating to income, assets and household size may not only lead to a finding that the affidavit of support is not sufficient to overcome the public charge ground of inadmissibility. It could also expose the sponsor or joint sponsor to liability for criminal prosecution for submission of fraudulent immigration documents.

What to Do When a Family Petition is Denied

The I-130 petition is the first step in immigrating to the United States through a family member. It is filed by U.S. citizens or lawful permanent residents to establish relationship with an alien relative.

U.S. citizens may file an I-130 for a spouse, unmarried child under 21 years of age, unmarried son or daughter 21 years or older, married son or daughter of any age, brother or sister, or a parent. Lawful permanent residents may file for their spouses and unmarried children only.

When an I-130 is denied, it does not necessarily mean that the process is over. In some cases, the reasons for denial are impossible to overcome. But many times the denial is just a hurdle that only tests one’s determination. When faced with a denial there are several options to choose from as circumstances may allow.

The denial may be appealed to the Board of Immigration Appeals (BIA). The petitioner files the appeal on Form EOIR-29 with the USCIS service center or district office that denied the petition. The petitioner must file it within 30 days of the date of the decision and pay the filing fee of $110. On the other hand, the petitioner may also opt to simply re-file the petition.

The reasons given by the USCIS for denial is probably the first thing to consider when deciding whether to appeal. For instance, the I-130 must have been approvable when filed in order to make appealing the denial worthwhile. For example, the spouses in a marriage-based petition must be legally married at the time of filing. If the husband’s divorce was not yet final at the time he remarried, the petition could not be approved.

On the other hand, if the reason for denial was a finding of fraud in a marriage-based petition, the petitioner should definitely consider contesting the denial because a fraud finding bars the approval of any other immigrant petition for the beneficiary.

Also, if the I-130 was denied due to failure to submit required documentation, presenting the documentation before the BIA will not necessarily result in a reversal. For example, a beneficiary child’s birth certificate will most likely not be considered “new evidence” by the BIA because it was already available or it “could have been discovered or presented” when the petition was filed. In this scenario, the petitioner may be better off re-filing the petition.

The petitioner may actually choose to do both – simultaneously appealing the denial and re-filing the petition – but several other factors may influence the petitioner to choose one option over the other.

For instance, unless one has an immediate relative petition, he/she would most likely be concerned about priority date preservation, especially when the I-130 took years before it was adjudicated. Re-filing an I-130 means that the priority date in the first petition would be lost.

Another factor is processing time. Appeals with the BIA can take more than one year while I-130 adjudication may take a shorter time. One more thing to consider is the cost: the I-130 filing fee of $420 must be paid again when re-filing, which is a lot more money compared to the $110 appeal fee.

If an appeal to the BIA is unsuccessful, the petitioner may seek review of the I-130 denial in federal court.

The petitioner’s other options include the filing of a motion to reopen/reconsider. A motion to reopen must include new facts supported by affidavits or other documentary evidence. In a motion to reconsider, the petitioner must show that the decision was incorrect based on the evidence of record at the time of the decision. There is a $630 filing fee and a 30-day period to file the motion.

Humanitarian Reinstatement of a Revoked Family Petition

Beneficiaries of family-based immigrant petitions face lengthy backlogs for visa availability. For example, with the exception of spouses and children of permanent residents (F2A), the waiting period for family sponsored preferences for the Philippines runs from 10 to 23 years.

Given these long waiting times, it is quite possible for the petitioner to pass away between the time of the I-130 approval and the availability of a visa number. The petitioner’s death results in the automatic revocation of the I-130 approval. As a rule, the death of the petitioner results in the death of the petition. For many foreign nationals, this could mean the end of their dream of ever living in the United States.

However, the law gives the USCIS director the discretion not to revoke the approval in instances where revocation would not be appropriate for humanitarian reasons. The I-130 beneficiary may ask for the reinstatement of the revoked petition by submitting a written request for humanitarian reinstatement to the USCIS office where the I-130 petition was filed. Only approved petitions may be reinstated and not petitions where the petitioner died before the approval.

The following factors are considered in evaluating a humanitarian request: disruption of an established family unit; hardship to U.S. citizens or lawful permanent residents; if the beneficiary is elderly or in poor health; if the beneficiary has had lengthy residence in the United States; if the beneficiary has no home to go to; undue delay by the DHS or consular officer in processing the petition and visa; and if the beneficiary has strong family ties in the United States.

The beneficiary must have a substitute sponsor who will execute the affidavit of support (I-864) in the place of the deceased petitioner. A law enacted in 2002 allowed the following relatives to become substitute sponsors of the beneficiary: spouse, parent, mother-in-law, father-in-law, sibling, child (if at least 18 years old), son, daughter, son-in-law, daughter-in-law, sister-in-law, brother-in-law, grandparent or grandchild or legal guardian of the beneficiary.

The substitute sponsor must meet the minimum income requirements and be a U.S. citizen or legal permanent resident, at least 18 years old, and domiciled in the U.S.

In 2009, Congress passed a law that provides great relief to I-130 beneficiaries already present in the United States at the time of the petitioner’s death. These beneficiaries may have their pending visa petition and adjustment of status application approved if they are surviving relatives under the law and they meet the residence requirement. In these cases, the petition does not die with the petitioner, so to speak.

The deceased qualifying relative may be the petitioner or the principal beneficiary in a family-based immigrant visa petition, the principal beneficiary in an employment-based visa petition, the petitioner in a refugee/asylee relative petition, the principal alien admitted as a T or U nonimmigrant, or the principal asylee who was granted asylum.

Furthermore, the surviving relatives must have resided in the United States at the time of the petitioner’s death, and continue to reside in the United States. For purposes of this law, “residence” need not be lawful U.S. residence.

Beneficiaries who were outside the United States when the petitioner died have humanitarian reinstatement as their only recourse. A claim of humanitarian factors must be supported by documentary evidence in order to increase the chances of the petition’s reinstatement.

The laws on substitute sponsorship and surviving relatives were passed to ameliorate the harsh and unjust consequences to the beneficiary resulting from the petitioner’s death.

Determining Age of Child Under CSPA

For many years, families with children who were beneficiaries of immigrant visa petitions often worried that the children would “age out” or turn 21 years old before the immigration processing could be completed.

This changed in 2002 when Congress enacted the Child Status Protection Act (CSPA). This law was intended to mitigate the harsh impact that reaching the age of 21 had on the children’s eligibility for an immigrant visa. Under the CSPA, a child’s age can be fixed or locked according to certain rules. It is the CSPA age, and not the chronological age, that is used to determine whether the person remains a “child” for immigration purposes.

In a recent public teleconference the USCIS Ombudsman explained the different formulas on how the age is calculated depending on whether the person is the child of a U.S. citizen, the child of a green card holder, a derivative in the family- or employment-based categories, an asylee/refugee derivative, or a derivative based on the Violence Against Women Act (VAWA).

If the parent is a U.S. citizen, the child who is unmarried and under 21, as of the date of the filing of a Form I-130 relative petition by the parent, is considered an immediate relative and his/her age is “frozen”. As a result, the child does not age out and remains eligible for the immigration benefit applied for. Before the CSPA, the child would have lost immediate relative status and automatically moved to the first family preference category (F2A).

If the child under 21 is married at the time of the filing of the I-130 by the U.S. citizen parent, a subsequent divorce before turning 21 converts this child to immediate relative status which is preserved when he/she reaches 21.

On the other hand, if the parent is a legal permanent resident (LPR) who files an I-130 for an unmarried child under 21, but who subsequently naturalizes before the child turns 21, the child is converted to immediate relative status and this status is preserved when he/she turns 21.

In other cases of LPR parents, the child’s CSPA age is his/her “adjusted age” which is the biological age minus the number of days that the I-130 petition filed on the child’s behalf was pending before being approved by the USCIS.

If on the date the visa becomes available for his/her priority date the child is under 21 using the formula for “adjusted age”, the child’s family 2A status is preserved. The child has one year from the date of visa availability to seek to acquire permanent resident status.

The computation for children of LPRs is especially useful because children who reach 21 fall into the family 2B category, where the backlog is greater than in the 2A category where they would remain had they not aged out. The difference in waiting times between 2A and 2B currently varies from 4 years to 15 years, depending on the country of chargeability.

Using the CSPA formula, derivative children in the family-based categories will retain their derivative status upon reaching 21 if their adjusted age is less than 21 on the date of availability of the principal beneficiary’s visa.

Derivative children in employment-based categories will likewise retain their derivative status upon turning 21 if their adjusted age is below 21 on the date of the principal beneficiary’s visa availability. The time during which the I-140 petition was pending is subtracted from the children’s biological age to arrive at their adjusted age.

As in children of LPR parents who do not otherwise naturalize, family- and employment-based derivative children must seek to acquire permanent resident status within one year from the date that their priority dates become current.

This requirement of seeking to acquire LPR status has been interpreted to mean the filing of an I-485 adjustment application, DS-230 Part I, or I-824 application.

Recent CSPA Decision Favors Aged-Out Children

A child who has turned 21 may still be considered younger than 21 years old under the Child Status Protection Act (CSPA). Being considered younger than 21 for immigration purposes significantly reduces the wait time to become a lawful permanent resident.

Locking a child’s age at younger than 21 occurs when a United States citizen parent petitions an unmarried child before he or she turns 21 but the child’s adjustment of status or admission as an immigrant takes place after reaching 21.

Another situation when a child’s age is frozen under CSPA is when a lawful permanent resident parent is the beneficiary of a visa petition or files a visa petition for his or her child under 21. The number of days between the filing of the petition and the approval is subtracted from the child’s age on the date that the priority date of the child or parent becomes current. If the difference is less than 21, the child benefits from the CSPA.

An additional requirement for CSPA purposes is that the child must have “sought to acquire” lawful permanent resident status within one year of the visa number availability. This is the date when the visa petition is approved and the priority date is current as indicated in the Department of State Visa Bulletin.

The phrase “sought to acquire” has been interpreted by the Department of Homeland Security (DHS) and the Department of State (DOS) narrowly. The DHS has stated that the phrase refers to the filing of an adjustment of status application.

The DOS has said that for purposes of consular processing it means the submission to the National Visa Center of the Form DS-230 Part I by the child or by the child’s parent or Form I-824 by the parent in cases where the child is following to join.

Many CSPA applications have been rejected or denied because of such strict interpretation.

In a recent unpublished decision by the Board of Immigration Appeals, the term “sought to acquire” was given a broad meaning.

In this case, Matter of Murillo, the visa petition of his father had a priority date of October 16, 1995 and was approved on August 8, 1996 when Murillo was 12 years old. A visa number became available on June 1, 2003 when he was 19 years old. However his attorney whom he retained to file his adjustment of status filed his application more than 20 months from the date when a visa number became available.

The DHS concluded that Murillo was not eligible for CSPA benefits because he did not file his adjustment application within a year from June 1, 2003. But the Immigration Judge ruled that he was eligible because the requirement of “sought to acquire” could be satisfied by circumstances short of filing the application. The hiring of the attorney to prepare the application satisfied this requirement.

The Board of Immigration Appeals agreed with the Immigration Judge. The Board said that the term “sought to acquire” was broad enough to include substantial steps (such as hiring an attorney who completed the form and obtaining a money order for the filing fee) toward the filing of the adjustment application within the required one-year period. To hold otherwise, the Board said, “would undermine the very purpose and intent of the statute which was to protect an alien ‘child’ from ‘aging out’ due to ‘no fault of her own’.”

Requirements for Grandfathering Spouse Under Section 245(i)

An alien who is out of status or who entered the U.S. without inspection or as a crewman is not allowed to adjust status to that of a permanent resident. The alien has to go to a U.S. Consulate abroad for immigrant visa processing and this means that the alien may be subject to the 3 year or 10 year bar for being unlawfully present in the U.S.

But there is a provision under the Immigration and Nationality Act known as Section 245(i) which allows aliens as described above to adjust status in the U.S. To be covered or “grandfathered” under the said section, an alien must be the beneficiary of a visa petition or labor certification that was filed on or before April 30, 2001.

The alien continues to be grandfathered until he/she adjusts status and there is no limit to the number of adjustment applications that the alien may file. The alien is not limited to adjusting on the basis of the qualifying petition or application but may seek to adjust on any other basis for which the alien is eligible.

Derivative beneficiaries such as spouses and children may benefit from the law. But there are requirements to meet before a derivative spouse or child is considered grandfathered.

If the spouse or child relationship existed at the time that the visa petition or labor certification was filed, Section 245(i) benefits apply even if at the time of the adjustment of the spouse or child (based on another petition, application, or any other proper basis) the spouse is already divorced from the principal beneficiary or the child is already 21.

If the spouse or child relationship began after the filing of the grandfathered petition or application and it still exists at the time of the adjustment of the principal beneficiary, Section 245(i) applies to the spouse or child if they adjust as dependents of the principal alien.

In a recent case (Matter of Legaspi), Michael Legaspi, a Filipino, married in 2003 a lawful permanent resident who was a grandfathered alien under Section 245(i). The spouse was grandfathered because her paternal grandfather had filed a visa petition for her father in 1987 and she was a derivative beneficiary of her father.

But she did not adjust her status under her grandfather’s petition but under an employment based petition filed in 2002.

Michael Legaspi argued that he was eligible to adjust under Section 245(i) because his wife was a grandfathered alien.

The Board of Immigration Appeals held that he was not a grandfathered alien because his wife was not the principal beneficiary of the 1987 visa petition. He did not have a qualifying relationship to his wife’s father who was the principal beneficiary of the 1987 petition. Therefore he could not be grandfathered as a derivative.

In addition, the Board ruled that had he and his wife been married when the 1987 petition was filed, she would not have qualified as a derivative beneficiary as she would not have met the definition of a “child” under immigration rules.

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