ALTHOUGH over ten years have passed since the most recent amendment pertaining to the law commonly referred to as “245i” was enacted, the law remains to be the subject of many court cases and interpretations. I myself have written on this topic previously. However, there appears to be a constant need to explain and clarify various provisions of the 245(i) law, because its application has been met with a great deal of confusion and debate. Not surprisingly, attorneys, immigration officers, and even immigration judges often struggle to apply and understand this law.
The “245(i)” law has derived its name from statute wherein it is delineated. The statute can be found in the Immigration and Nationality Act (INA), which is governing immigration law. In a nutshell, section 245(i) permits an alien to obtain a green card in the United States, either through an approved family or employment petition, despite certain prior immigration violations. They include entry to the United States without inspection, prior unauthorized presence in the United States, and unauthorized employment.
To qualify or be “grandfathered” under section 245(i), the alien must be the beneficiary of a qualifying immigrant visa petition or application for labor certification that was filed on or before April 30, 2001. A beneficiary of the 245(i) petition filed after January 14, 1998 must also prove that he or she was physically present in the United States on December 21, 2000. The alien will remain “grandfathered” until he or she obtains the green card. This predicated, however, upon showing that the 245(i) petition was properly filed and was approvable (filed in good faith).
There are some additional points to remember when dealing with the 245(i) law. First, the “grandfathered” alien can adjust his or status on any basis, not necessary through the grandfathering petition. Second, the law allows for two types of grandfathered individuals. The first group includes the actual beneficiaries of the visa petition or labor certifications filed before April 30, 2001. They are known as principal beneficiaries. The second group includes spouses and children of the principal grandfathered aliens, as long as the necessary familial relationship existed when the grandfathering petition was filed.
In a recent decision, the Board of Immigration Appeals (BIA) considered the interplay between the 245(i) eligibility of a derivative beneficiary and the physical presence requirement. See Matter of Ilic, 25 I. & N. Dec. 717 (BIA 2012). Ilic, the respondent in the case, and his wife were citizens of Serbia. They married in 1982. Ilic’s wife became the beneficiary of a family petition filed for her by her sister in 1999. Ilic entered the United States in 2005 without inspection and later became the beneficiary of approved employment-based immigrant visa petition. In removal proceedings, he applied for adjustment of status under section 245(i) as a derivative alien of his wife’s I-130 Petition. The basis for the green card was the approved employment visa petition.
Ilic was granted adjustment of status in court, but the Department of Homeland Security appealed. On appeal, the BIA considered whether an alien can “independently qualify for section 245(i) adjustment as a derivative grandfathered alien if the principal beneficiary of the qualifying visa petition does not meet the physical presence requirement.” The BIA recognized that derivative grandfathered aliens themselves do not have to meet the physical presence requirement if the grandfathering petition was filed after January 14, 1998. However, the principal beneficiaries must show that they were present in the United States on December 21, 2000.
In Ilic, the principal beneficiary was Ilic’s wife. As such, if the visa petition by her sister was timely and properly filed and the wife met the physical presence requirement, Ilic, as her husband, qualified for his employment-based adjustment as a derivative grandfathered alien. If the wife did not meet the physical presence requirement, however, Ilic would be out of luck and could not obtain his green card.
As it is evident from the Ilic case, the various provisions of the 245(i) law are subject to interpretations and legal challenges, even in 2012. The 245(i) law remains to be an evolving topic and, consequently, 245(i) eligibility is often challenged by the government. As such, assistance from a knowledgeable and experienced attorney in this area can make all the difference. Our office will be happy to navigate you through the often difficult immigration law journey. Please do not hesitate to contact us at any of our California and Utah locations.
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Kelly O’Reilly is a nationally known immigration expert and former immigration officer. He is a highly sought after speaker on immigration and employment compliance issues. Mr. O’Reilly serves as the current chair of the Riverside County Bar Association Immigration section and is a partner in the full-service immigration firm of Wilner & O’Reilly where he provides free consultations. Mr. O’Reilly can be contacted at (562) 207-6789 or he welcomes email inquiries at [email protected].