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.)

Sunday, August 11, 2013

After-acquired spouses and children not grandfathered for 245(i) benefits

Section 245(i) of the Immigration and Nationality Act (INA) is a special provision of the law that allows certain groups of individuals to adjust status to become lawful permanent residents of the U.S. despite their illegal status.  The deadline for filing an immigrant petition under 245(i) is April 30, 2001.  For individuals who qualify for section 245(i) benefits, they are considered “grandfathered” for future applications.  It means that they are able to apply for adjustment of status based on subsequent immigrant visa petitions unrelated to the initial application.  The spouses and children of the principal applicant in existence are also grandfathered for 245(i) benefits.     However, for individuals who became spouses or children of a principal grandfathered applicant after April 30, 2001, they cannot qualify as "derivative grandfathered aliens" for purposes of section 245(i),  according to a recent decision by the Board of Immigration Appeals. Matter of Vanessa Joan ESTRADA, 26 I&N Dec. 180 (BIA 2013)

Section 245(i) allows individuals who entered the U.S. without inspection, overstayed their status, violated their immigration status, etc., to have a chance to apply for adjustment of status and become legal residents by paying a penalty fee.  It is an old law that has not been renewed by Congress.  Hence, only those who are grandfathered may use 245(i) to apply for legal status.  There are two types of grandfathered individuals.  First, the principal applicants who filed “an approvable when filed” immigrant visa petition on or before April 30, 2001.  Second, the spouses and children of the principal applicants in existence on or before April 30, 2001.  They are also grandfathered and may also be independently qualified for section 245(i) relief in future petitions.  However, neither section 245(i) nor the regulations deal with the status of the spouses acquired, and children born, after April 30, 2001. 

In Estrada, the two respondents are a couple who are citizens of the Philippines.  They both entered the U.S. as temporary visitors and overstayed their status.   Similarly they both claim benefits pursuant to section 245(i) of the INA based on immigrant petitions filed before April 30, 2001.  The husband was the beneficiary of an I-130 petition filed by his former wife.  The wife submitted an I-140 employment-based immigrant petition as an “extraordinary ability” alien under the EB-1A  employment visa category.  However, they were not married until 2007.  Although the husband is a grandfather principal applicant based on the I-130 petition (which apparently was not consummated), he has no basis to file a subsequent visa petition and therefore is relying on his spouse’s petitions.

The wife withdrew the initial I-140 petition in 2002. Subsequently, a second employment-based I-140 visa petition was filed on her behalf in 2006.  The couple now claim benefits under section 245(i). They make two independent arguments regarding their eligibility.   First, they argue that the wife should be  grandfathered based on the first I-140 visa petition filed in April 2001.  Second, they argue that they are both grandfathered based on the I-130 petition filed on behalf of the husband in 2000 by his former wife.

The Board found both arguments unpersuasive and dismissed their appeal.  First of all, the BIA concluded the wife’s first I-140 petition was not “approvable when filed” because the application was completely lacking in supporting evidence.  (Normally an EB-1A extraordinary petition requires extensive supporting documentation).  Therefore, she is not a grandfather alien based on her first I-140 petition.  Regarding the husband’s I-130 petition, the Board did find the husband to be a grandfathered principal applicant.  However, the BIA concluded that the wife, as an after-acquired spouse, did not become a grandfathered applicant.  As such, she cannot use a subsequent visa application, i.e., her second I-140 petition, to apply for legal status.  Consequently, the husband also cannot claim any benefit as the dependent spouse of the wife.

Neither section 245(i) or the related regulation provides answers to the status of after-acquired spouses and children after April 30, 2001.  The Board therefore turned to "The Supplementary Information to the Interim Rule" for answers.  The Attorney General in the Supplement explains that that “ the purpose of grandfathering was to allow qualifying aliens to preserve their eligibility for section 245(i) adjustment after the April 30, 2001, sunset date."  The Board therefore found the intent of section 245(i) is to protect the status of foreigners who met the requirements on or before the deadline only.  Spouses acquired and children born afterwards are not within the class of people protected by section 245(i).

The Board explained that a spouse in existence on April 30, 2001 preserves her grandfathered status despite changes in the relationship with the principal (e.g., divorce, death)  afterwards.  Similarly, subsequent changes in circumstances such as marriages or births that took place after April 30, 2001 should not disturb the original class of eligible individuals under section 245(i).  To support its position, the Board cited several BIA and Federal Court decisions:  Matter of Ilic, 25 I&N Dec. 717 (BIA 2012); Matter of Butt, 26 I&N Dec. 108 (BIA 2013); Linares Huarcaya v. Mukasey, 550 F.3d 224 (2d Cir. 2008); and Landin-Molina v. Holder, 580 F.3d 913 (9th Cir. 2009)

Finally, the Board emphasized that after-acquired spouses and children may still be indirectly eligible for section 245(i) relief in certain circumstances.  Under section 203(d) of the INA, these spouses and children who are accompanying or following to join a grandfathered adjustment applicant are also “considered grandfathered”  if the qualifying relationship (i.e., marriage or birth) existed before the grandfathered alien adjusts his or her status.  It is important to note that the date of adjustment of the grandfathered alien is usually after the sunset date of April 30, 2001.

Section 203(d) is a general provision that applies to all adjustment applicants.  The spouses and children in this situation are merely immigrating as dependents of the principal immigrant.  It just happens that the principal is applying for adjustment of status pursuant to section 245(i).   They are only treated as "grandfathered" with the principal but do not enjoy actual grandfathered status.   Dependents who have actual grandfathered status under 245(i) are able to independently apply for adjustment of status based on their own, subsequent visa petitions.  This difference is night and day, as illustrated by the Filipino couple in Estrada.

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