Aliens who have submitted petitions under former section 245(i), while in removal proceedings, may qualify as “grandfathered” beneficiaries entitled to discretionary relief. Grandfathered aliens are eligible to adjust their status to that of a lawful permanent resident while in deportation proceedings.
Former section 245(i) of the Immigration Act provided for aliens who entered the United States without inspection, have expired legal status or who were otherwise ineligible, to proceed with their adjustment to lawful permanent resident while living here in the United States.
In January of 1998 Congress eliminated the provisions of 245 (i) while allowing for certain classes of aliens to “grandfather” their petitions under this section. A grandfather provision is an exception to a new law that allows all those already doing something to continue doing it even if they would be stopped by the new law. To grandfather under section 245(i) family based petitions that were filed, pending and were approveable on or before January 14, 1998 are considered grandfathered.”
Employment based immigrants whose employers filed labor certification applications with the Department of Labor by January 14, 1998 are also entitled to the benefits of section 245(i).
The beneficiary of a qualifying petition may adjust his status here in the United States as a “grandfathered” beneficiary under section 245(i). This benefit is also available to those facing removal from the United States.
Section 240 of the Immigration Act provides for a single proceeding in which an Immigration Judge determines the inadmissibility or deportability of an alien. The purpose of the 240 Removal Hearing is to determine if the alien has been admitted into the United States and whether the alien should be removed or granted some form of relief from removal.
Forms of Relief
Discretionary relief from deportation may be granted to eligible aliens by the Immigration Judge in the following forms:
1. Voluntary Departure
2. Cancellation of Removal
3. Creation of Record
4. Adjustment of Status
Many individuals who have qualified as “grandfathered ” employment or family based beneficiaries under section 245 (i) are currently in removal proceedings. Their visa petitions would entitle them to discretionary relief from deportation. However, the delays by the INS and the Department of Labor in adjudicating these petitions and applications pose a serious problem for those entitled to relief.