INS Issues Long-Awaited Memo on 245(i) "Grandfathering"
Posted May 29, 1999

In the November 1998 edition of the Law Office of Sheela Murthy Bulletin, we indicated that INS would be issuing a memorandum clarifying who is, and who is not, eligible for "grandfathering" under 245(i) in order to file an adjustment of status application for being out of status.

To recap briefly, Section 245(i) of the Immigration and Nationality Act allows persons who are the beneficiaries of immigrant visa petitions (Form I-140 or I-130) or of labor certification applications filed on or before January 14, 1998, to eventually adjust status in the U.S. despite having fallen out of status or having entered without inspection. Again, as we have reminded many callers and readers, this provision does not affect the TIMING of the adjustment, but only affects whether, when the time eventually comes, the person will be eligible to file the adjustment application (Form I-485 and related documents) in the U.S., as opposed to having to go for a visa interview abroad (referred to as consular processing).

It is important to keep in mind that Section 245(i) does not give a person the PERMISSION to remain in the U.S. in expired status; however, for those who have not been apprehended by INS in the meantime, 245(i) gives them the opportunity, at the time of filing for adjustment of status, to retroactively remedy the out-of-status problem.

The long-awaited INS memo on Section 245(i) has finally been issued. The memo confirms the issues discussed in the November 1998 article on this subject in the Immigration Bulletin of the Law Office of Sheela Murthy. The INS has confirmed the following with respect to I-130 or I-140 Petitions or labor certifications that have been denied, withdrawn or revoked but which had been filed on or before the January 14, 1998 deadline for grandfathering:

The pre-January 15, 1998 petitions must have been "approvable when filed." If a petition was fraudulent or without any legal or factual basis, or filed without the fee payment, it would not meet the "approvable" standard. This "approvable when filed" standard also applies to petitions and labor certifications that were withdrawn, denied, or revoked. If it meets the standard, then it can be the basis for grandfathering eligibility.

INS has still not decided how to handle pre-January 15, 1998 I-140 petitions or labor certifications that have not yet been decided at the time the beneficiary files to adjust on another basis. The INS will provide further guidance on that point. The recent memo indicates that for those I-130 relative petitions which have not yet been adjudicated, the INS will use the "approvable when filed" standard to determine eligibility. If the petition requires additional documentation, a reasonable opportunity would generally be provided to submit such information, and thereby hopefully qualify the petition for grandfathering purposes.

The issue of grandfathering could be important for many applicants for immigration who may have inadvertently fallen out of status. The Law Office of Sheela Murthy will provide an update on this topic when INS issues further guidance.