USCIS Clarifies 245(i) "Grandfathering"
Posted Apr 15, 2005
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The U.S. Citizenship and Immigration Services (USCIS) issued a memo in March 2005, that clarifies the eligibility requirements to benefit from §245(i) of the Immigration and Nationality Act. In essence, this provision permits individuals to adjust status to permanent residence, even if they entered the United States without inspection or otherwise are out of status / unlawfully present in the U.S.
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What Does 245(i) Protection Mean?
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In order to use §245(i), one must be eligible in all other respects for permanent residence. That is, §245(i) does not, in and of itself, provide a way to obtain a green card. It is not an amnesty. What it does is eliminate a procedural barrier to obtaining the approval of the I-485 application for adjustment of status that exists for people who have status issues that otherwise would prevent them from qualifying to adjust status to permanent residence.
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Eligibility Requirements for 245(i) Grandfathering
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The Memo clarifies certain eligibility requirements for §245(i). The term "grandfathered" is a legal term essentially including a certain group of people under the law or exempting a group from a new law based upon a prior act or condition. To illustrate using an example with no bearing in reality, if a law is passed prohibiting people under 21 from driving, it might allow those who already have drivers' licenses to continue to drive, even if they are under 21 years of age. In this imaginary example, these existing drivers would be considered as "grandfathered in" because of their existing status as licensed drivers.
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To be grandfathered under §245(i), a person must be the beneficiary of a qualifying immigrant visa petition (usually I-130/I-140) or labor certification (not the Labor Condition Application used for H1Bs) filed on or before April 30, 2001. If the qualifying immigrant visa petition or application for labor certification was filed between January 15, 1998 and April 30, 2001, that person must also prove that s/he was physically present in the United States on December 21, 2000, on the date that the LIFE Act was passed. All potential beneficiaries of §245(i) must show that the petition or labor certification was properly filed and approvable when filed. This latter requirement essentially means that it had to be a good, valid case when filed, even if it ultimately did not result in a green card approval for some reason.
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Grandfathered Person's Benefit Has Expansive Scope!
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The March 2005 245(i) Memo confirms that, once a person is grandfathered under §245(i), that individual continues to be grandfathered until s/he adjusts status and becomes a permanent resident. Further, that person may seek to adjust status either under the original immigrant visa petition / labor certification or using another basis to adjust status. For example, if one had a labor certification filed prior to April 30, 2001, but now wants to adjust status as the spouse of a green card holder who filed an I-130 petition on his/her behalf, that person is permitted to use the §245(i) benefit to adjust status in the later case.
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One who is grandfathered is also permitted to seek adjustment of status as many times as possible, as long as that person pays the $1000 fee each time. If, for example, one files an I-485 application under the diversity lottery program, but the case is not approved in time, that person could still file another I-485 application based on an I-140 petition or I-130 petition at a later date. In the past, at least at some local offices, applicants were not always required to pay the $1000 fee more than once, even if they filed a second or subsequent case.
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There is no expiration date on when an I-485 application may be filed to obtain the §245(i) benefit. The §245(i) benefit remains available until the individual has obtained lawful permanent resident status.
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Labor Certifications Must Be Approvable When Filed

To meet the approvable-when-filed criterion, a labor certification must have been properly filed, meritorious in fact, and non-frivolous. Unless there is evidence of fraud in a labor certification case, if the U.S. Department of Labor (DOL) accepted a labor certification, it will be considered by the USCIS to be properly filed and approvable when filed. If the labor certification is later denied, withdrawn, or revoked after being properly filed and approvable when filed on or before April 30, 2001, it still qualifies the beneficiary for §245(i) grandfathering. (Example: An employer files a proper labor certification on or before April 30, 2001. Before a decision is made on the case, the employee quits. The employer is no longer interested in the case, so it is withdrawn. The foreign national beneficiary would still qualify under §245(i), but would need a new labor certification or other filing to be able to use the §245(i) grandfathering benefit.)
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Derivative Grandfathering
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The spouses and children of persons who are grandfathered under §245(i) are also grandfathered. The March 2005 245(i) Memo clarifies which spouses and children have this benefit. The following scenarios assume that the spouse or child does not have his/her own, independent basis to claim the §245(i) benefit.
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Spouses / Children :
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At the Time the Petition or Application that Conferred §245(i) Was Filed : If a person was the spouse or child of a §245(i) beneficiary at the time that the qualifying immigrant visa petition or labor certification application was filed, that spouse or child remains grandfathered under §245(i) even if couple has divorced or the child has reached the age of 21 since that time. This means that, even if the spouse or child is no longer eligible for derivative adjustment of status, the spouse or child can obtain adjustment of status through any other means available and use §245(i) to achieve this goal.
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Acquired after April 30, 2001, but in Existence When Beneficiary Adjusts Status : If the spouse or child was not thus related to the beneficiary before April 30, 2001, then such a spouse or child does not have an independent basis to claim a §245(i) benefit. The spouse or child may only use §245(i) if s/he is doing so as a derivative of the principal beneficiary of the §245(i) benefit. This means that, if there is a divorce or the child ages out, such spouses or children are not able to use the §245(i) benefit for later applications or petitions. This is an important distinction.
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Acquired after April 30, 2001, not in Existence When the Beneficiary Adjusts Status : Persons who became the spouses or children of §245(i) beneficiaries after April 30, 2001, but who do not remain spouses or children (due to aging out) of such a beneficiary until that person adjusts status may not use §245(i) for their own I-485 applications.
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After the §245(i) Beneficiary Adjusts Status : Once the §245(i) beneficiary adjusts status, any spouse or child acquired later is not protected by §245(i). The USCIS takes the position that §245(i) is lost once the primary beneficiary adjusts status, since the entire purpose of §245(i) is to confer the adjustment of status benefit to that individual. Therefore, the benefit ends once the case is approved.
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Conclusion
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We at The Law Office of Sheela Murthy appreciate the USCIS's clarification of its position on this important and somewhat complex issue. Persons who have a §245(i) benefit should be ready to prove it to the USCIS, as the USCIS may not have their own records showing all potential §245(i) beneficiaries. Those who need assistance proving qualification to adjust status under §245(i) should consult with a qualified immigration attorney.