We previously discussed adjustment of status and grandfathering under INA 245(i). Under INA 245(i), an alien, (a) who is physically present in the U.S. and (b) who entered without inspection, who is in unlawful immigration status, who fails to maintain status or who has accepted unauthorized employment, may adjust status if: (1) the alien is the beneficiary of an immigrant petition or application for labor certification filed on or before April 30, 2001; (2) the immigrant petition or labor certification application was properly filed and approvable when filed; and (3) the alien was physically present in the U.S. on December 21, 2000 if the qualifying immigrant petition or labor certification application was filed after January 14, 1998.
Today, we’ll discuss what it means when we say that a petition or application is “approvable when filed”. Under 8 CFR 245.10(a)(3), “approvable when filed” means that a qualifying petition or application was: (1) properly filed; (2) meritorious in fact; and (3) non-frivolous.
First, under 8 CFR 245.10(a)(2), an immigrant petition is properly filed if it was physically received by the immigration service or postmarked on or before April 30, 2001. In Matter of Butt, 26 I&N Dec. 108 (BIA 2013), the Board of Immigration Appeals (BIA) explained that a labor certification application was properly filed if a Form ETA 750 was properly completed by the employer and the beneficiary and it was filed with the appropriate local Department of Labor (DOL) office on or before April 30, 2001.
Second, in Matter of Butt, the BIA further explained that an immigrant petition is meritorious in fact if it would have merited a legal victory had it been fully adjudicated even if the petition was not fully prosecuted or actually approved. For example, in the context of a marriage-based petition, a petition is meritorious in fact if the marriage was entered in a good faith.
However, in the context of a labor certification application, the analysis is slightly different. Labor certifications are different from immigrant petitions because they are subject to further negotiation between the petitioning employer and the DOL as to the acceptable terms and conditions of employment even after the applications are accepted for processing. The employer and the DOL have a degree of flexibility to modify the terms of the original filing in order to develop a labor certification that will be ultimately approved. Due to the negotiated nature of the labor certification process, DOL recognizes that it does not have the ability to determine whether an application is meritorious until its adjudication is complete.
Thus, an inquiry into the merits of a labor certification must be more limited than the method applied to immigrant petitions. Therefore, the BIA concluded that a labor certification is meritorious in fact if it was properly filed and non-frivolous as long as a bona fide employer-employee relationship exists wherein the employer has the apparent ability to hire and there is no fraud.
Third, pursuant to 8 CFR 245.10(a)(3), a frivolous petition or application is one that is patently without substance.
If a petition or application meets the three-part test for determining whether it was approvable when filed, as well as the other elements of grandfathering, the beneficiary is grandfathered. However, a petition or application that was filed, may be approved, denied or withdrawn. How would these subsequent changes affect a beneficiary’s grandfathered status?
If a petition or application that was filed on or before April 30, 2001 was later approved, this would validate the presumption that it was approvable when filed. But there are other possibilities.
If the petition or application was denied, we should determine whether the denial was based on the merits or due to changed circumstances. If it was denied on the merits, the beneficiary cannot be considered as grandfathered because the alien cannot continue to be deemed a beneficiary upon the denial of the petition or application. An example would be a fraudulent application or a case wherein the claimed relationship or employment cannot serve as the basis for the issuance of an immigrant visa.
If the petition or application was denied due to circumstances arising after filing, the beneficiary would continue to be grandfathered despite these changes. Changed circumstances refer to those beyond the beneficiary’s control such as the death of the petitioning spouse or the employer going out of business.
If the petition or application was withdrawn due, for example, to the employer’s business troubles which eliminate the need for the beneficiary’s services, the beneficiary would continue to be grandfathered. However, if the petition was withdrawn because the petitioner knew that it would be denied, then USCIS would determine whether the petition would have been denied on the merits had it not been withdrawn.
Adjustment under INA 245(i) invites serious scrutiny from USCIS. You should prepare by mastering the details of the qualifying petition or application.
