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BIA Looks Again at 245(i) Eligibility

By Charles Wheeler

Just when you thought you understood eligibility for adjustment of status under INA § 245(i), the Board of Immigration Appeals provides further insight into this complex area of the law. The most recent case, Matter of Svetislav Ilic, 25 I&N Dec. 717 (BIA 2012), involves a derivative spouse who was seeking eligibility for adjustment under 245(i).  He was applying, however, not as a derivative spouse, but as a principal beneficiary based on a separate petition.  The prevailing interpretation, up until this decision, has been that the applicant must establish physical presence on December 21, 2000, since the underlying petition was filed after January 14, 1998.  This is because he is applying for adjustment as a principal beneficiary, not as a derivative.  But the BIA held that as long as the principal beneficiary in the underlying petition satisfied the physical presence requirement, the derivative on that petition qualifies as a grandfathered beneficiary and may file for adjustment as a principal beneficiary on a separate petition.

The facts, as they were known, were straightforward: a U.S. citizen filed a fourth preference family-based petition for her married sister on December 1, 1999.  Neither the married sister nor her husband were eligible for adjustment of status under INA § 245(a) because they had entered the United States without inspection.  The fourth preference family-based priority date was not yet current, but a visa was available for the husband in a post-April 30, 2001 labor certification/employment-based petition that was approved in his behalf.  The wife would be considered “grandfathered” under 245(i), assuming the she satisfied the December 21, 2000 physical presence requirement. Since the record did not include a finding on this fact, the BIA remanded it to the immigration judge.

The BIA did not discuss the competing arguments as to whether the derivative husband needed to establish physical presence on December 21, 2000.  Instead, it simply held that it would be sufficient if the wife – the principal on the underlying I-130 petition – established the requisite presence. Given how often this issue arises and how significant the decision is, it would be helpful to provide some background and analysis.

The typical fact scenario involves a derivative child in a family-based case where the petition was filed between January 15, 1998 and April 30, 2001, and the principal beneficiary – a parent – has established the necessary physical presence.  The child in that situation does not have to establish physical presence on December 21, 2000, as long as the child is adjusting as a derivative.  However, if the child were to marry a U.S, citizen or be eligible to immigrate based on a separate petition, he or she might qualify as a “grandfathered” alien and adjust under 245(i).  But in that case, since the child would now be a principal beneficiary, the question is whether he or she would need to establish physical presence on December 21, 2000.  Up until the BIA decision, the prevailing answer has been “yes.”

The argument supporting this position is found in 8 CFR § 1245.10(a)(1)(ii).  It states as follows:

If the qualifying visa petition or application for labor certification was filed after January 14, 1998, the alien must have been physically present in the United States on December 21, 2000.  This requirement does not apply with respect to a spouse or child accompanying or following to join a principal alien who is a grandfathered alien as described in this section.

This regulation would imply that the physical presence requirement applies to everyone except derivatives who are accompanying or following-to-join the principal beneficiary.  In the case before the BIA, as well as the typical example described above, the derivative spouse or child is applying for adjustment based on being a principal beneficiary on a separate, subsequently-filed petition.

The USCIS last issued a memo interpreting 245(i) eligibility on March 9, 2005.  While the memo describes and illustrates who is grandfathered for 245(i) purposes, it does not clarify the precise issue raised in this case.  The memo, however, does set forth the general requirements for 245(i), which includes: “(3) The principal alien was physically present in the United States on December 21, 2000, if the alien’s qualifying immigrant visa petition or application for labor certification was filed between January 15, 1998 and April 30, 2001.” In the case before the BIA, as well as the typical example described above, the husband or child is applying for adjustment as a principal alien and would thus need to establish physical presence.

But the opposing argument is that if the alien qualifies as grandfathered under 245(i) based on being a derivative spouse or child, the physical presence requirement is waived, regardless of how the alien later qualifies to immigrate.  The literal language in 8 CFR § 245.10(n) supports this theory.  It states:

Evidentiary requirement to demonstrate physical presence on December 21, 2000. (1) Unless the qualifying immigrant visa petition or application for labor certification was filed on or before January 14, 1998, a principal grandfathered alien must establish that he or she was physically present in the United States on December 21, 2000, to be eligible to apply for adjustment of status under section 245(i) of the Act.

According to this argument, the physical presence requirement applies only to principal beneficiaries, not derivatives.  In the case before the BIA, as well as the typical example described above, the husband or child is a derivative grandfathered alien and thus would not need to establish physical presence.

This BIA decision seems to settle this issue: if one was ever classified as a grandfathered derivative under 245(i), he or she does not need to satisfy the physical presence requirement, regardless of whether adjusting as a derivative or a principal beneficiary.