A blog about U.S. immigration matters by Paul Szeto, a former INS attorney and an experienced immigration attorney and counsel. Contact Info: 732-632-9888, http://www.1visa1.com/ (All information is not legal advice and is subject to change without prior notice.)

Monday, April 22, 2013

BIA Finds Labor Certification “Approvable When Filed” for Section 245(i) Grandfathering

In a recent decision decided on April 19, 2013, the Board of Immigration Appeal (BIA) held that a labor certification is “approvable when filed” for purpose of grandfathering under section 245i of the Immigration and Nationality Act if it is (1) “properly filed,” (2) “meritorious in fact,” and (3) “non-frivolous.” 
A labor certification is “properly filed” if it is submitted to and accepted for processing as a completed application by the correct local DOL office on or before April 30, 2001.   Date-stamping by the local office is evidence that the application was properly filed before the sunset date for further processing.  A labor certification is “non-frivolous” if it is not deemed to be “patently without substance.”  Finally, if a labor certification is “properly filed” and “non-frivolous,”  it is also presumed to be “meritorious in fact” absent any apparent bars to a favorable adjudication (e.g., a lack of qualifying employer-employee relationship). 
Applying the above legal standard, the Board in Matter of Butt, 26 I&N Dec. 108 (BIA 2013), held that the original labor application filed by his employer on April 30, 2001 did “grandfather” Mr. Butt for the purpose of adjustment of status pursuant to section 245i.  The case was remanded to the Immigration Court for further proceedings.  As somebody who entered the United States without having been inspected and admitted by an immigration officer, Mr. Mutt would not be eligible to apply for a green card through adjustment of status without the protection of section 245i.

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