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.