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INS Announces Official Policy Guidance on 245(i) Grandfathering

By Vanessa S. Barcelona
  As you may recall, Section 245(i) of the Immigration and Nationality Act was allowed to sunset (i.e., expire) effective January 14, 1998.

With the expiration of this provision, many presently in the U.S. without legal immigration status were faced with the prospect of being barred from applying for residency in the U.S., and were left facing the unfavorable option of having to leave the country in order to apply for immigrant visas abroad.

The consequences of failure to adjust in the U.S., given the new immigration laws barring reentry for 3 or 10 years if out of status for certain periods of time, were far-reaching as well. Thus, adjustment of status no longer became an option for many, even with the payment of a $1000 fine. Of course, this limitation did not apply to those who were adjusting to lawful residency on the basis of a petition filed by a U.S. citizen spouse, parent, or child -- as long as such Beneficiaries entered with a valid visa (excluding those whose entries were made with C or D visas). Regardless of present status (or lack of one), such applicants did, and still can, adjust -- under 245(a) of the INA.

In order to take advantage of 245(i) after January 14, 1998, INS announced that there must be filed on the alien Beneficiary's behalf, an immigrant visa petition filed with the Attorney General (i.e., INS) or a labor certification application filed with the Secretary of Labor. Such petitions must be filed before January 15, 1998. Even if adjustment of status is eventually filed years and years later -- as long as a petition for which adjustment is based was filed pre-January 15, 1998 -- the alien need not leave the U.S. and be potentially subjected to the 3 or 10-year bar prior to reentry.

In the frenzy of filing for an I-130 petition, or a labor certification application, or an I-140 petition by January 14, 1998, many petitions were, predictably, filed too hastily and oftentimes done on the basis of tenuous connections between the Petitioner and the Beneficiary. One and a half years later, maybe the Petititioner is no longer in business. Maybe the employment relationship -- and the willingness to sponsor the Beneficiary -- has since terminated. Maybe the I-130 petitioner has died. Maybe the 11th hour marriage between the I-130 Petitioner and Beneficiary has crumbled. We can come up with a myriad of ways a petition filed by January 14, 1998 can no longer be a viable avenue for adjustment of status to lawful permanent residency.

Now what?

INS in recent months has answered that question. The agency has made its official stance on the issue, and adopted an "alien-based" reading (i.e., an interpretation favorable to the alien) which allows the Beneficiary to adjust using a different type of petition than the one filed pre-January 15, AS LONG AS the labor certification application, I-130 petition or I-140 petition filed on or before January 14, 1998 was "approvable at the time of filing". Such is the official guidance on what standard must be met in order to "grandfather" an individual for purposes of adjusting under 245(i).


"Approvable when filed" Standard:
In order to be approvable at the time of filing, the petition/application must meet all applicable substantive requirements for that filing. What exactly does this mean? Pre-January 15, 1998 filings are deficient -- and therefore insufficient for grandfathering purposes -- if they were submitted without a fee; or if they were fraudulent or without any basis in law or fact. An example of a petition that would not meet this standard is an I-130 petition filed by a USC or LPR spouse who was "not really married" to the Beneficiary because one of them was previously married and no divorce decree was obtained before the qualifying marriage was entered into. Even if the qualifying petition was eventually withdrawn, denied, or revoked -- as long as it meets the "approvable when filed" standard, the alien is grandfathered and can adjust on the basis of another post-January 15, 1998 petition.

"Age-out" cases:
In the case of Beneficiaries who "age out", INS has also announced that such Beneficiaries are considered to be "grandfathered" for purposes of adjusting under 245(i). For example, a son or daughter of an I-140 or I-130 beneficiary who turns 21 before the Principal is allowed to adjust to lawful permanent residency, and who would have otherwise been able to adjust with the Principal but for the fact that such son or daughter turned 21 will also be allowed to adjust under a different petition because that dependent was "grandfathered" by the initial pre-January 15 petition. This is clearly an interpretation favorable to the alien Beneficiary.

Finally, in furtherance of this "alien-based" reading of 245(i)'s grandfather clause, INS has also recently announced that while the alien Beneficiary is not "saved" from the possibility of INS' commencing removal proceedings against them, the fact that a pre-January 15 petition was filed and may eventually lead to adjustment of status will be an important factor to be considered in determining whether INS resources shall be expended in placing the alien Beneficiary in immigration proceedings.  

VANESSA S. BARCELONA is a partner with the law offices of Barcelona & Pilarski, P.A. She obtained her law degree from the University of Florida. She is a member of the American Immigration Lawyers Association, the American Bar Association, and the Florida Bar. Please send all e-mails to: vsbarcelona@earthlink.net


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