"Grandfathering" for Adjustment Eligibility under Section 245(i)
Posted Nov 16, 1998

The American Immigration Lawyers Association ("AILA") has announced that INS is planning to issue a memorandum shortly explaining who is "grandfathered" under 245(i). As many readers of the Law Office of Sheela Murthy Bulletin may be aware, 245(i) is a provision of the immigration law that enables beneficiaries of labor certifications or immigrant visa petitions filed before January 14, 1998 to adjust status in the U.S. even if their status has expired, or if they have entered the country without inspection. Persons without a legal immigration status who begin their green card process after January 14, 1998 would have to go abroad for a consular interview, rather than adjusting status in the U.S., and may therefore be subject to a 3- or 10-year bar on their return. [There remain some limited exceptions, the main one being "immediate relatives:" parents, spouses and children (under 21) of U.S. citizens.]

This law has officially expired, but those persons with pre-January 14 cases are said to be "grandfathered," so that they continue to be eligible to adjust status. Some questions remain as to who exactly is grandfathered. It is hoped that the new memorandum from INS will clear up this uncertainty.

As to the following issues, INS does appear to have made a decision:

a. A particular alien - not an application or petition - is grandfathered. This means that if a labor certification application or an immigrant petition is filed before January 14, 1998, then even if the alien eventually adjusts status based upon a different petition, filed after January 14, 1998, then he or she is still eligible for 245(i) adjustment.

b. INS has previously stated (though they are considering changing their position) that a labor certification or a petition filed before January 14, 1998, which was denied or withdrawn can still be the basis for 245(i) eligibility. This is currently a matter of controversy between the American Immigration Lawyers Association (AILA) and INS. AILA is lobbying on behalf of its members and their clients to obtain grandfathering status even in such cases.

c. A visa lottery application cannot be the basis for "grandfathering." However, if the lottery winner did have a pre-January 14, 1998 labor certification or immigrant petition, then he or she would be able to adjust.

d. If a person is grandfathered, his or her spouse or child can also benefit, even if the family members adjust at a different time from the principal applicant. This applies even if, after January 14, 1998, the child reaches the age of 21 or the spouse obtains a divorce.

e. In the above situation, the INS has recently acknowledged the position of AILA that if the marriage or birth took place after filing the qualifying labor certification or petition but prior to adjustment, the family members are still eligible to adjust and benefit from the grandfathering provisions.

The Law Office of Sheela Murthy is pleased that AILA's lobbying efforts have resulted in the INS classifying all of these categories of beneficiaries who are grandfathered and can take advantage of the adjustment provisions.