"Grandfathering" and Other Important Issues Like H1B to H-4 Conversion after Six-Year Cap
Posted Sep 21, 1998

Grandfathering : The Law Office of Sheela Murthy indicated in late 1997 that employment based (and family-based other than parent, spouse or minor child of U.S. citizen) permanent residency cases for persons who were out of status would have to be filed prior to January 14, 1998, in order to preserve the beneficiaries eligibility to complete the case without having to leave the U.S. Though section 245(i), the provision which enables the above persons to solve their status problem by paying an extra fee with their adjustment application, has now expired, those persons whose cases were filed prior to the above deadline are considered to be "grandfathered." That is, they can continue to benefit from 245(i).

We had advised that certain family members can also benefit from the opinion of the INS General Counsel. We are stressing it again because of its importance and since the Law Office of Sheela Murthy has received several questions pertaining to this important issue.

INS has clarified its position and advised AILA that if such grandfathered persons were married and/or had children at the time the immigrant petition or labor certification application was filed, then those spouses and children would also be grandfathered. This would be the case even if there is a divorce. INS has still not decided how to handle cases in which the person marries after the petition is filed. The INS believes that these "after-acquired" spouses should be grandfathered, but is studying whether the law will allow this.

Based on the opinion of the General Counsel of INS, the Law Office of Sheela Murthy also points out again that if a person who is grandfathered, later applies for adjustment of status in a completely different category that person is still eligible to adjust under 245(i). The INS has agreed that it will issue a memorandum on grandfathering under 245(i).

Grandfathering and DV Lottery Applicants : Those who applied for the DV lottery before January 14, 1998 cannot be grandfathered. Only immigrant visa petitions or labor certification applications will qualify.

Foreign Travel When Change of Status or Extension of Status : INS is of the opinion that a person who travels abroad after having filed an application for a change of status or an extension of status but before it is approved is considered to have violated status effective from the date the previous status expired and accrues unlawful presence for purposes of Section 222(g) which requires the applicant to apply for the visa in the home country for failure to maintain status.

In response to AILA's request to the U.S. Department of State (DOS) and INS, DOS has agreed to a blanket "extraordinary circumstances" waiver to allow such an applicant to apply in a third country and INS has now agreed to a blanket waiver of visa for such an applicant at the port of entry in the U.S.

H1B and H4 Computation for the 6 Year Cap : The position of the INS has always been and continues to be that under the statute and the present regulations, a person who had six years in H1B status cannot change to H4 status because the 6 year cap applies to the H status. Based on AILA's request, the INS has agreed to consider whether a regulatory change to allow a conversion from H1 to H4 is advisable as a matter of policy. The Law Office of Sheela Murthy understands that several applicants have received an approval from H1B to H4 after reaching the 6 year cap, probably in error by the INS but INS could still consider such a person to be in violation of status for the bars.

Use of expired LCAs for H1B applications : The Department of Labor (DOL) has issued a memorandum to INS indicating that expired Labor Condition Applications could be used to support an H1B extension in those cases where the person will file for an H1B after having filed an adjustment of status application. INS has agreed to advise the Service Centers regarding the retroactive extensions and regarding the fact that no new LCAs are required. It is advisable to consult with an attorney or to contact the Law Office of Sheela Murthy to file an H1B Petition under such circumstances.