Since early 1998, many questions have remained unanswered surrounding who is eligible for 245i “grandfathering.” For background purposes, section 245i was the provision of the Immigration and Nationality Act that permitted persons who were not in status, entered without inspection or worked without authorization to adjust their status while remaining in the United States. The alien would pay the INS a penalty fee of $1,000.00 to adjust their status in the U.S. Without 245i, many aliens are ineligible to adjust their status in the United States and must return to their native country to be processed through the U.S. Consulate. Unfortunately, if aliens leave the United States, they will trigger a three or ten year bar, possibly preventing their return to the U.S.
Section 245i expired on January 14, 1998; however, the INS has said that they would permit certain persons who filed their petitions or labor certifications on or before January 14, 1998 to be permitted to use 245i whenever they became eligible for adjustment of status. These persons are considered to have been “grandfathered” for 245i purposes. Although the INS is still undecided on certain grandfathering issues, the following is a list of the INS’ positions at this time.
The INS has consistently stated that the 245i benefit goes with the person and not with the petition. This means that, if Maria had a labor certification that was filed prior to January 14, 1998, but wants to adjust based on a different family-based petition, she can still use 245i to remain in the U.S. and get her green card. So long as Maria was eligible based on any pre-January 14, 1998 petition, she shall always retain eligibility. This means she may eventually adjust based on a marriage, based on a brother/sister petition, based on the labor certification or any other available petition.
Furthermore, Maria’s spouse and children who were eligible based on the pre-January 14, 1998 petition or labor certification shall also be grandfathered for 245i. No matter if the spouse loses his spouse status by divorcing Maria or if the children lose their child status by becoming 21, they all shall still retain their grandfathered status for 245i purposes.
Even “after-acquired” spouses or children may utilize the 245i benefit is they are accompanying or following to join a grandfathered person. What this means is that someone Maria marries in December 1998 and his children can still use 245i if he is still married to her at the time of her adjustment.
One issue that the INS is presently debating whether a denied, withdrawn or canceled pre-January 14, 1998 petition or labor certification may still create grandfathered status. Previously, the INS had stated that the alien would still be eligible for 245i; however, the INS is now considering changing this position. Unfortunately, no solid answers to this question are available at this time.
Perhaps the most important issue that is yet unresolved is how to prove a labor certification or application was filed before January 14, 1998. This is not a problem in California because the Employment Development Department (EDD) notifies applicants upon receipt of the application. Nevertheless, many states lack this type of notification procedure, leaving no proof of a pre-January 14, 1998 filing. The INS is presently looking into this and other grandfathering matters.
For the past several months, the INS has been promising to clarify all of the 245i grandfathering issues in a comprehensive written memorandum, but thus far this is just another empty promise. I shall continue to monitor the INS’ progress and update you whenever any opinions or decisions are published.