The Board of Immigration Appeals, or BIA, has further defined what is required for a petition to be “approvable when filed” for eligibility for adjustment of status under 245(i). Matter of Triana, 28 I&N Dec. 659 (BIA 2022). The case before the BIA was whether the term included an I-130 petition for the married daughter of a lawful permanent resident that had been erroneously approved. The BIA held that the petition had to have been meritorious at the time it was filed, which included the requirement that the beneficiary actually qualified for the family-based category that was sought. Since the petitioner did not disclose that the beneficiary was married at the time, and the petition should not have been approved, and it was not “approvable.”

The case decision also affirmed two other issues: (1) an immigration judge has the power to investigate whether the underlying petition was approvable for 245(i) eligibility purposes, even though the USCIS has already approved it; and (2) the definition of an “after-acquired” derivative means the derivative status was created after the 245(i) cut-off date of April 30, 2001. This means that “grandfathered derivatives”— as opposed to after-acquired ones—include those born or married to the principal beneficiary on or before that date rather than being limited to those born or married on or before the underlying petition was filed.

“After-acquired” spouses and children — children born after the cutoff date, and the spouse of a principal beneficiary in the third- or fourth-preference category whose marriage took place after the cutoff date — are allowed to adjust under section 245(i) as long as they acquire their status as spouse or child before the principal adjusts. As an after-acquired derivative, they can also adjust under 245(i) as a derivative spouse or child of the principal 245(i) applicant. But they are not classified as grandfathered under 245(i). In other words, they are not eligible to file for adjustment under 245(i) independent of the principal beneficiary, who is classified as grandfathered.

The BIA had stated earlier in a different case that the term “after-acquired” means that the marriage of the derivative spouse or the birth of the derivative child took place after April 30, 2001. Matter of Estrada and Estrada, 26 I&N Dec. 180, 184-85 (BIA 2013). In the current case, the BIA has repeated that interpretation (“Derivative beneficiaries of the principal beneficiary may also be grandfathered into the provision if a spouse or child relationship existed with the principal beneficiary on or before April 30.”) The U.S. Citizenship and Immigration Services, nevertheless, defines the term “after-acquired” as those who married or were born after the petition was filed, not after April 30, 2001. 7 USCIS Policy Manual pt. C ch. 2D (“A noncitizen who became the spouse or child of a grandfathered principal beneficiary after the qualifying petition or application was filed may only seek INA 245(i) adjustment through the principal beneficiary as an accompanying (or following-to-join) immigrant”). Practitioners should use the latest BIA decision, along with the earlier one, to support the interpretation of grandfathered derivatives as including those born or married after the underlying petition was filed provided the birth or marriage was on or before April 30, 2001.