Are you a Grandfathered Alien?

Immigration attorneys face a common problem: there are countless times when a client comes to your office seeking assistance and there is simply nothing that can be done for an individual or family under our U.S. immigration laws. Often this ineligibility is due to a foreign national lacking Section 245(i) protection under the Immigration and Nationality Act (INA). Generally speaking, Section 245(i) of the INA allows an otherwise inadmissible alien having an immediately available immigrant visa to apply for adjustment of status (a “green card”) in the United States, even if that alien entered the U.S. without inspection (EWI) in violation of INA Section 245(a), or is barred by Section 245(c).

To be considered a grandfathered alien, a foreign national must satisfy the requirements pursuant to 8 CFR 245.10. It is very easy for the principal alien beneficiary of a qualifying immigrant petition or application for labor certification to know whether he or she is protected under the grandfathering regulations and is thus eligible for Section 245(i) adjustment of status.

What I often see in my everyday practice, however, is that many individuals who were not the principal beneficiaries of qualifying petitions or labor certification applications do not realize that they also possess Section 245(i) protection as well.

Section 245(i) defines the term “beneficiary” to include a spouse or child “eligible to receive a visa under Section 203(d) of the Act.” In turn, this statute opens up the pool of qualified 245(i) applicants to certain derivative spouses and children and not just the primary alien beneficiaries of a particular case.

For example, say your husband’s employer filed a labor certification application in his behalf prior to April 30, 2001 and all other requirements for a grandfathered application has been met (i.e. approvable when filed, etc.). If you were married prior to the filing of this application, you are also considered a grandfathered alien and can apply for adjustment of status under any proper basis. This grandfathering protection remains even if you have since divorced your spouse.

Another example when Section 245(i) grandfathering exists is where your aunt, a U.S. citizen, filed a family based petition for your mother prior to you turning 21 years of age and provided you were unmarried at the time of filing. Under this scenario, if all other grandfathering requirements have been met, you should be a grandfathered alien and eligible to apply for a green card in the U.S. pursuant to Section 245(i).

It is very important when speaking to an immigration attorney that you are not only aware of your immigration history but are aware of your entire family’s immigration background as well. You will not believe how many times we encounter individuals who do not realize they have this Section 245(i) protection and are ready to give up on the entire immigration process only to learn that an old petition or application filed in behalf of their spouse or parent can save the day for them.

Contributed by Brian S. Weiss

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