245(i) Eligibility

By: Attorneys Robert L. Reeves and Cynthia J. Scribe

On March 9, 2005, the U.S. Citizenship & Immigration Services issued an Interoffice Memorandum providing clarification regarding the eligibility requirements for applications to adjust status under section 245(i) of the Immigration and Nationality Act.

Section 245(i) of the Immigration and Nationality Act (INA) allows an otherwise inadmissible alien with an immediately available immigrant visa petition to apply for adjustment of status upon payment of a $1,000 penalty fee. To be grandfathered under section 245(i), the alien must be the beneficiary of a properly filed immigrant visa petition or labor certification application filed on or before April 30, 2001. If the qualifying petition or labor certification was filed between January 15 1998 and April 30, 2001, the alien must show that he or she was physically present in the United States on December 21, 2000. A grandfathered alien is not limited to adjust status on the basis of the petition or labor certification that initially qualified the alien, but rather through any approvable petition. The memorandum also clarifies the policy that there is no limit to the number of applications the grandfathered alien may file for adjustment of status provided that all requirements are met and the $1,000 fee is paid for every application filed.

The memorandum provides specific clarification with regard to the requirements for the derivative spouse or child of a grandfathered alien. For example, if an alien can demonstrate that a spouse or child relationship existed at the time a qualifying petition or application was properly filed on or before April 30, 2001, a principal alien’s spouse or child is a grandfathered alien regardless of any subsequent changes in the relationship with the principal alien. This means that the spouse or child in this case would remain grandfathered even in the case of divorce or the child attaining over 21 years of age.

Another derivative scenario addressed in the memorandum regards spouse or child relationships established after April 30, 2001 and in existence on the date the principal alien adjusts status. In this case, the spouse or child may only benefit as a dependent of the principal alien. Thus, the qualifying relationship must continue to exist at the time the principal alien adjusts status in order to obtain the derivative benefit

A further derivative scenario addressed is the case where a spouse or child relationship is established after April 30, 2001 but not in existence on the date the principal alien adjusts status. In this case the spouse or child is not grandfathered and may not file for adjustment of status under section 245(i) as a dependent. Following this logic, spouse or child relationships established after the principal alien adjusts status are also not eligible for derivative status under 245(i).

This memorandum is intended to provide clarification for training and guidance of USCIS personnel in performing adjudications. If you have questions with regard to eligibility for adjusting status under section 245(i) of the INA, it is advisable to consult a reputable immigration attorney who specializes in immigration and nationality law.