In a recent decision the Board of Immigration Appeals held that after-acquired derivatives are not eligible to be considered “grandfathered” for purposes of eligibility for section 245(i) adjustment of status. Matter of Estrada, 26 I&N Dec. 180 (BIA 2013).  This decision clarifies but is consistent with prior USCIS memos interpreting this provision.

By way of background, INA § 245(a) allows those who entered the United States with inspection to adjust status if they are either an immediate relative or are in one of the family-based preference categories and have always maintained lawful immigration status, including always working with employment authorization. INA § 245(i) allows for the adjustment of those who entered without inspection or, if they entered with inspection and are in one of the preference categories, overstayed their I-94 or worked illegally.

To qualify for 245(i), a petition (I-130, I-360, I-526, or labor certification) must have been filed on behalf of the beneficiary on or before April 30, 2001, and the beneficiary must have been physically present in the United States on December 21, 2000.  This physical presence requirement is waived for those whose petition was filed on or before January 14, 1998 or who are derivative beneficiaries. The petition must have been “approvable” at the time of filing.

The BIA confirmed the long-standing USCIS policy that both principal and derivative grandfathered aliens are independently eligible to apply for section 245(i) adjustment of status and either may be the principal adjustment applicant under that section. The regulations define “grandfathered” as “an alien who is the beneficiary (including a spouse or child of the alien beneficiary if eligible to receive a visa under section 203(d) of the Act)” of a qualifying visa petition or labor certification that was filed on or before April 30, 2001.” 8 CFR § 1245.10(a)(1)(i).

The BIA has clarified that in order to be “grandfathered” and thus eligible for 245(i) adjustment, the relationship establishing the derivative spouse or child must have been in existence on or before April 30, 2001. Spouses and children who were born after that date or whose marriage took place after that date are classified as “after-acquired,” are not considered “grandfathered,” and thus cannot adjust under 245(i).  Nevertheless, if they are considered derivatives (“dependents”) of the principal beneficiary at the time he or she is adjusting under 245(i), they may adjust as a derivative with that parent or spouse. In other words, they may not adjust under 245(i) independent of that relationship.

Example.  Juan, who entered the United States illegally in 1997, is the beneficiary of a fourth preference petition filed on his behalf by his US citizen brother in 2000.  The petition was approved. Juan married his undocumented wife, Juanita, in March 2001. When the F-4 priority date becomes current, both Juan and Juanita are eligible to adjust as grandfathered aliens under 245(i). Should he and his wife divorce before the F-4 becomes current, Juan can still adjust under 245(i) when it does become current, and Juanita can adjust under 245(i) should she become the beneficiary of a separate petition filed in her behalf, such as by a subsequent husband.

Example. Same facts only Juan and Juanita marry in March 2013 and they stay married.  Juanita is considered an after-acquired spouse. Juanita is not grandfathered under 245(i), but is still eligible to adjust with Juan under 245(i), regardless of when she entered the United States.  Since she is not considered grandfathered, she could not divorce Juan, re-marry, be petitioned by an LPR or U.S. citizen spouse, and adjust under 245(i).  She could only adjust under 245(i) as Juan’s derivative spouse.

The facts in the case were a bit complicated.  The husband, Charlemagne Estrada, had a family-based petition filed in his behalf prior to April 30, 2001 by his first spouse, though the couple later divorced.  Because the petition was considered approvable at the time of filing, Charlemagne was grandfathered under 245(i).  However, in order to adjust, he needed a new petition filed in his behalf.  He and his second wife, Vanessa, were married after April 30, 2001, thus making her an after-acquired spouse. But his second wife was also undocumented.  Because she could not file a petition in his behalf, he could not take advantage of his grandfathered status based on their marriage. 

Vanessa had had a labor certification filed in her behalf prior to April 30, 2001, but it was determined by an immigration judge not to have been approvable when filed.  A subsequent labor certification was filed and a Form I-140 approved on her behalf, but not until 2006.  Because she was not considered grandfathered under Charlemagne’s earlier I-130 petition, she was not eligible to adjust under 245(i) based on the second labor certification and approved I-140. Because no subsequent petition had been filed and approved in Charlemagne’s behalf, which would have allowed him to adjust under 245(i), Vanessa cannot adjust with him as his derivative spouse. Hence, the BIA found neither adjustment applicant eligible for 245(i).

The BIA case provides a good review of 245(i) eligibility for adjustment of status, clarifies the definition of after-acquired derivatives, and distinguishes them from those who are grandfathered under that section of the law.