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.